NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANDRA L. FERGUSON, Esquire, 

Plaintiff-counterdefendant-Appellant, 

 v. 

BRIAN J WAID, and the marital community 

thereof, 

Defendant-counter-claimantAppellee.

No. 18-36043 

D.C. No. 2:17-cv-01685-RSM 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted December 13, 2019

Seattle, Washington

Before: GOULD and BERZON, Circuit Judges, and BENITEZ,** District Judge.

1. Sandra Ferguson appeals from the district court’s order dismissing her 

§ 1983 claims against Brian Waid under Fed. R. Civ. P. 12(c). Ferguson fails to 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Roger T. Benitez, United States District Judge for the 

Southern District of California, sitting by designation.

FILED

JAN 8 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-36043 

state a § 1983 claim because Waid’s communications about Ferguson with the 

Washington State Bar Association are immunized under the Noerr-Pennington 

doctrine, and Ferguson’s Complaint does not plausibly allege application of the 

sham exception. Empress LLC v. City & Cty. of San Francisco, 419 F.3d 1052, 

1056-57 (9th Cir. 2005). Moreover, Ferguson’s Complaint does not plausibly 

allege “state action,” as required to plead a § 1983 claim. See Franklin v. Fox, 312 

F.3d 423, 444 (9th Cir. 2002) (“A civil rights plaintiff suing a private individual 

under § 1983 must demonstrate that the private individual acted under color of 

state law[.]”). 

2. Ferguson appeals from the district court’s order imposing Rule 11 

sanctions for her filing of a frivolous § 1983 claim against Waid. Ferguson did not 

file a timely opposition to Waid’s motion for sanctions before the district court;

this Court declines to invoke its discretion to consider Ferguson’s arguments raised 

for the first time on appeal. Cold Mountain v. Garber, 375 F.3d 884, 891 (9th Cir. 

2004). Further, even considering the merits, the district court did not err in finding 

Ferguson’s § 1983 claim to be frivolous. 

3. Ferguson appeals from the district court’s order holding her Complaint 

violated Washington’s Anti-SLAPP statute, RCW 4.24.510, and awarding $10,000 

in statutory damages to Waid. Because a state’s Anti-SLAPP statute does not 

apply to federal claims for relief, we reverse the district court’s finding on that 
3 18-36043 

claim, and strike the associated $10,000 award. Hilton v. Hallmark Cards, 599 

F.3d 894, 901 (9th Cir. 2010) (an “anti-SLAPP statute does not apply to federal 

law causes of action. . . . [A] federal court can only entertain anti-SLAPP special 

motions to strike in connection with state law claims”); Martinez v. California, 444 

U.S. 282, 284 n.8 (1980) (“Conduct by persons acting under color of state law 

which is wrongful under 42 U.S.C. § 1983 . . . cannot be immunized by state law”).

4. Ferguson appeals from the district court’s two orders denying summary 

judgment. First, Ferguson cannot challenge the district court’s findings of fact on 

appeal because she did not furnish the trial transcript. See Syncom Capital Corp. v. 

Wade, 924 F.2d 167, 169 (9th Cir. 1991) (“Without a trial transcript, the majority 

of [Appellant]’s contentions are unreviewable. We also agree that [Appellant]’s 

failure in this respect justifies summary affirmance of the district court’s decision, 

pursuant to Fed. R. App. P. 10(b)(2).”). 

Second, as to the alleged errors Ferguson raises, her appeal of the orders 

denying summary judgment in her favor on the defamation and harassment claims 

is foreclosed by Ortiz v. Jordan, 562 U.S. 180 (2011), because a district court’s

orders denying summary judgment are not reviewable after a trial on the merits. 

Here, following a trial on the merits, the district court made findings of fact and 

conclusions of law about Waid’s defamation and civil harassment counterclaims. 

Ferguson relies upon a pre-Ortiz exception, which permits review of “purely legal 
4 18-36043 

issues” after a trial on the merits, but this Court has not yet decided whether that 

exception survives Ortiz. Moreover, even if it did, the exception would not apply 

here where Ferguson does not raise “purely legal issues capable of resolution with 

reference only to undisputed facts.” Williams v. Gaye, 895 F.3d 1106, 1122 (9th 

Cir. 2018) (internal quotations omitted); cf. Banuelos v. Constr. Laborers’ Trust 

Funds, 382 F.3d 897, 903 (9th Cir. 2004) (in ERISA case, examining purely legal 

issue of whether district court “erred as a matter of law when it concluded it could 

hear evidence outside the administrative record”). 

Finally, the district court essentially granted partial summary judgment for 

Waid when it “conclude[d] as a matter of law that Ms. Ferguson made statements 

of fact, not opinion, when she stated that Mr. Waid engaged in fraudulent and 

criminal activity,” and ordered that Ferguson was “precluded from raising this 

defense at trial.” That conclusion was not in error. See Milkovich v. Lorain 

Journal Co., 497 U.S. 1, 18-19 (1990) (a statement of opinion that reasonably 

implies a false and defamatory statement of fact is actionable). “Even if the 

speaker states the facts upon which he bases his opinion, if those facts are either 

incorrect or incomplete, or if his assessment of them is erroneous, the statement 

may still imply a false assertion of fact.” Id.

5. Ferguson appeals from the district court’s post-trial order, entering an 

injunction “to protect Mr. Waid from further harassment.” The injunction is 
5 18-36043 

overbroad at section (a), which prohibits Ferguson generally “from contacting past 

or present clients of Brian J. Waid, either in person, via telephone, or by electronic 

communications.” Id. That prohibition is not supported by the district court’s

findings of fact or conclusions of law regarding defamation, as its effect is to 

preclude Ferguson from having any communications with Waid’s clients, 

including about topics unrelated to Waid or this lawsuit. Accordingly, we reverse 

and remand with instructions to revise section (a) to add the underlined language:

“Sandra Ferguson is enjoined from repeating the same or effectively identical 

statements found to be defamatory in this case to past or present clients of Brian J. 

Waid, either in person, via telephone, or by electronic communications.” With that 

modification, the injunction will be “tailored to eliminate only the specific harm 

alleged.” E & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1297 (9th Cir. 

1992). As to the remaining sections of the injunction, we affirm. 

6. Both parties’ requests for attorneys’ fees are DENIED as premature and 

as not supported by proper documentation. See Fed. R. App. P. 39-1.

1

1 The pro se parties’ motions for judicial notice, Docket Entry Nos. 38, 53, 

60, 67, 69, 97, and 110, are granted. 

The Court construes Ferguson’s motion, Docket Entry No. 116, to strike a 

duplicate filing as seeking to strike Docket Entry No. 115. The motion is granted, 

and the Clerk shall strike the motion submitted at Docket Entry No. 115. 

The Court construes Ferguson’s motion to supplement the record, Docket 

Entry No. 111, as a request for judicial notice made pursuant to Fed. R. Evid. 201, 

and the motion is granted.
6 18-36043 

AFFIRMED in part, REVERSED in part, and REMANDED.