Tommy Bahama Group, Inc. v. Richard Sexton

* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOMMY BAHAMA GROUP, INC.,
Plaintiff-Counterdefendant -
Appellee,
v.
RICHARD SEXTON,
Defendant-Counterclaimant -
Appellant.
No. 10-15005
D.C. No. 3:07-cv-06360-EDL
MEMORANDUM*
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.
FILED
APR 23 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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
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

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3
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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