Millenium Holding Group, Inc. v. Sutura, Inc.

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. Fed. R. App. P. 34(a)(2).
The Honorable Ann Aldrich, United States District Court for the***
Northern District of Ohio, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILLENIUM HOLDING GROUP, INC.,
Plaintiff - Appellant,
v.
SUTURA, INC., et al.
Defendants - Appellees.
No. 08-16232
D.C. No. 2:05-CV-00356-JCM-
LRL
MEMORANDUM *
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted October 7, 2009**
San Francisco, California
Before: THOMPSON and THOMAS, Circuit Judges, and ALDRICH, District***
Judge.
FILED
NOV 25 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Millenium Holding Group, Inc. (“Millenium”) appeals the district court's
grant of summary judgment in its suit against Sutura, Inc. (“Sutura”), Fusion
Capital Fund II, LLC (“Fusion Fund”), and Fusion Capital Partners, LLC (“Fusion
Partners”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the
district court.
Millenium claims that the district court erred by failing to consider its claim
that Sutura repudiated the agreement before Millenium’s performance was due.
Because Millenium did not properly raise this argument before the district court,
and no exceptional circumstances justify consideration on appeal, we decline to
address the claim and affirm the district court’s grant of summary judgment.
Millenium also claims that the district court erred by granting summary
judgment in favor of Sutura, Fusion Fund, and Fusion Partners on the conspiracy
claim. The district court properly granted summary judgment because Millenium
failed to produce evidence that gives rise to a genuine issue of material fact as to
whether a conspiracy occurred. See In re Citric Acid Litig., 191 F.3d 1090, 1093
(9th Cir. 1999) (finding that a plaintiff must present either direct evidence that a
conspiracy occurred or circumstantial evidence from which a reasonable factfinder
could conclude that a conspiracy occurred to survive a motion for summary
judgment on a conspiracy claim).

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AFFIRMED.

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