                                                                              FILED
                            NOT FOR PUBLICATION                               APR 23 2012

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


TOMMY BAHAMA GROUP, INC.,                        No. 10-15005

              Plaintiff-Counterdefendant -       D.C. No. 3:07-cv-06360-EDL
Appellee,

  v.                                             MEMORANDUM*

RICHARD SEXTON,

              Defendant-Counterclaimant -
Appellant.


                     Appeal from the United States District Court
                        for the Northern District of California
                  Elizabeth D. Laporte, Magistrate Judge, Presiding

                       Argued and Submitted April 16, 2012
                            San Francisco, California

Before: SCHROEDER, O’SCANNLAIN, and GRABER, Circuit Judges.

       Richard Sexton appeals from the district court’s grant of summary judgment

in favor of Tommy Bahama. The facts are known to the parties and will not be

recounted here.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Before the district court, Sexton did not introduce sufficient evidence to

counter Laura Case’s declaration that the shirts he sold in 2004 were counterfeit.

Nor did he specifically call into question Case’s credibility. Thus, viewing the

evidence in the light most favorable to Sexton, the nonmoving party, there was no

genuine issue of material fact as to whether the shirts he sold in 2004 were

authentic. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).

Accordingly, the district court did not err in granting summary judgment to

Tommy Bahama on its infringement claims.1

      It was Sexton’s burden to “overcome th[e] strong presumption” against the

application of laches. Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1138–39

(9th Cir. 2006). The district court did not abuse its discretion or commit clear error

in concluding he did not meet that burden. Jarrow Formulas, Inc. v. Nutrition

Now, Inc., 304 F.3d 829, 833–34 (9th Cir. 2002).

      Because the record supports a finding that Sexton “has failed diligently to

pursue discovery” during this litigation, Emp’rs Teamsters Local Nos. 175 & 505

Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1130 (9th Cir. 2004) (internal



      1
             Since Case’s declaration is sufficient to affirm the district court’s
grant of summary judgment, we do not address Sexton’s argument that it was
improper for the magistrate judge herself to conduct a comparison of Sexton’s
eBay listings and Tommy Bahama catalogues.
                                           2
quotation marks omitted), it was not an abuse of discretion for the district court to

deny Sexton’s request for a continuance of Tommy Bahama’s summary judgment

motion, Visa Int’l Serv. Ass’n v. Bankcard Holders of Am., 784 F.2d 1472, 1475

(9th Cir. 1986).



      AFFIRMED.




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