William Swoger v. Rare Coin Wholesalers; Steven L. Contursi; Donald Kagin

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM SWOGER,
Plaintiff-Appellant,
v.
RARE COIN WHOLESALERS; STEVEN
L. CONTURSI; DONALD KAGIN,
Defendants-Appellees.
No. 13-56501
D.C. No.
8:09-cv-00903-
CJC-AN
OPINION
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted
June 4, 2015—Pasadena, California
Filed October 8, 2015
Before: MILAN D. SMITH, JR., and N. RANDY SMITH,
Circuit Judges, and JOAN H. LEFKOW,* Senior District
Judge.
Opinion by Judge Milan D. Smith, Jr.
* The Honorable Joan Humphrey Lefkow, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by
designation.

-- 1 of 9 --

SWOGER V. RARE COIN WHOLESALERS 2
SUMMARY**
Coins / Discovery
The panel affirmed the district court’s summary judgment
in favor of Rare Coin Wholesalers in an action brought by a
coin expert seeking compensation for his expertise on a rare
coin known as a “Brasher Doubloon.”
The coin expert’s claim for relief depended upon the
accuracy of his assertion that he had provided to Rare Coin
Wholesalers proof that their Coin was the first legal-tender
gold coin struck pursuant to an Act of Congress.
The panel held that the Coin was not, as the coin expert
theorized, legal tender pursuant to An Act Regulating Foreign
Coins, and For Other Purposes, ch. 5. 1 Stat. 300 (1793). The
panel concluded that the coin expert could not recover
because he had not provided the information he alleged he
was required to provide pursuant to the parties’ agreement.
The panel also held that the coin expert did not satisfy the
requirements of Fed. R. Civ. P. 56(d), and, accordingly, the
district court did not abuse its discretion by denying the coin
expert’s request for a continuance to conduct discovery.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

-- 2 of 9 --

SWOGER V. RARE COIN WHOLESALERS 3
COUNSEL
Richard P. Herman (argued), Law Office of Richard P.
Herman, Newport Beach, California, for Plaintiff-Appellant.
Armen R. Vartian (argued), Law Offices of Armen R.
Vartian, Manhattan Beach, California, for Defendants-
Appellees.
OPINION
M. SMITH, Circuit Judge:
Plaintiff-Appellant William Swoger appeals from the
district court’s grant of summary judgment in favor of
Defendants-Appellees Rare Coin Wholesalers, Steven L.
Contursi, and Donald Kagin (collectively, Appellees).
Appellees owned a rare coin known as a “Brasher Doubloon.”
Swoger offered to sell Appellees information that would
prove that their coin was the first legal-tender coin struck
pursuant to an Act of Congress. Swoger divulged the
information, but Appellees refused to pay him, and Swoger
filed suit.
In due course, Appellees moved for summary judgment.
After that motion had been fully briefed, Swoger moved to
continue oral argument in order to depose a witness. The
district court denied Swoger’s motion. On summary
judgment, the district court concluded that as a matter of law,
Appellee’s Brasher Doubloon was not legal tender, that
Swoger’s information was without value, and that Swoger
could not prevail on any of his claims. Accordingly, the
district court granted summary judgment to Appellees.

-- 3 of 9 --

SWOGER V. RARE COIN WHOLESALERS 4
Swoger appeals both the discovery ruling and the grant of
summary judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Ephraim Brasher was a goldsmith in late eighteenth-
century New York. He minted several coins known as
Brasher Doubloons, which command a high price in today’s
numismatic market. All Brasher Doubloons display an eagle
on one side of the coin, but one such coin differs from all the
others in that Brasher countermarked his initials on the breast
of the eagle rather than on its wing. That coin, formerly
owned by Appellees, is the subject of this case. The parties
agree that Swoger is an expert concerning coins like the
Brasher Doubloons. In the course of his research, Swoger
became convinced that Appellees’ coin—the “Punch on
Breast” Brasher Doubloon (Coin)—was the first legal-tender
coin in the United States.
Swoger informed Appellees that he had information that
would prove that their Coin was “the first United States Coin
issued for circulation, and was issued . . . under authority of
[a]n Act of Congress.” The Act in question (Act) was An Act
Regulating Foreign Coins, and For Other Purposes, ch. 5, 1
Stat. 300 (1793). Swoger offered to sell this information to
Appellees for money. The complaint described the ensuing
negotiation as follows:
In February of 2009, Plaintiff contacted
Defendant Kagin. Negotiations began in
which Plaintiff informed him that the
information that Plaintiff had would prove
that Defendants Kagin and Contursi’s coin
was indeed the first legal tender coin to be

-- 4 of 9 --

SWOGER V. RARE COIN WHOLESALERS 5
struck pursuant to an Act of Congress to
circulate in the United States. . . . Defendant
Kagin contacted Plaintiff and advised him that
they thought this information was worth
$250,000.00. Plaintiff then advised
Defendant Kagin that he thought the
information was worth $500,000.00.
The parties agreed to meet at a trade show to conclude
negotiations. At the trade show on April 3, 2009, Kagin
allegedly insisted that Swoger provide the proof behind his
theory. Swoger informed Appellees that the Act provided for
Spanish and Spanish colonial coins to pass at 27.4 grains per
dollar. That would require a 15 dollar gold piece like the
Brasher Doubloon to weigh 411 grains. Swoger informed
Appellees that because their Coin weighed 410.5 grains, it
must have been struck “pursuant to the Act.” Appellees
refused to pay Swoger for this information.
Swoger brought five claims against the defendants, styled
respectively as claims for quantum meruit, fraud, breach of
contract, constructive trust, and misappropriation of trade
secrets. Throughout the litigation, Swoger took the position
that the agreement required him to prove the Coin was the
first legal-tender gold coin struck pursuant to an Act of
Congress. The viability of each of Swoger’s claims depended
upon the accuracy of this premise.
Discovery originally closed on November 26, 2010.
However, Appellees sold the Coin in December 2011.
Accordingly, on October 18, 2012, the district court permitted
Swoger to depose persons involved in the sale, including
Steven Contursi. On May 24, 2013, Appellees moved for
summary judgment. Swoger, however, had yet to depose

-- 5 of 9 --

SWOGER V. RARE COIN WHOLESALERS 6
Contursi. Accordingly, on June 19, 2013, just four days
before the scheduled date of oral argument, Swoger moved
for a continuance. The district court denied his motion.
On summary judgment, Appellees argued that each of
Swoger’s claims required him to prove that he had provided
information proving that the Coin was legal tender under the
Act, and that he had not done so. In opposition, Swoger
provided an affidavit explaining once again his theory that the
Coin “was THE FIRST LEGAL TENDER GOLD COIN
STRUCK PURSUANT TO AN ACT OF CONGRESS TO
CIRCULATE IN THE UNITED STATES.”
The district court granted summary judgment. The
district court determined that the Act applied only to foreign
coins, and that Appellees’ Coin, which was struck in New
York, could not have been legal tender under the Act. The
district court also found that all of the information Swoger
had provided to Appellees was already known or otherwise
publicly available. This appeal followed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over Swoger’s appeal pursuant to 28
U.S.C. § 1291. We review a district court’s grant of
summary judgment de novo. Hexcel Corp. v. Ineos
Polymers, Inc., 681 F.3d 1055, 1059 (9th Cir. 2012). A
district court’s refusal to continue a hearing on summary
judgment pending further discovery is reviewed for an abuse
of discretion. Tatum v. City & Cnty. of San Francisco,
441 F.3d 1090, 1100 (9th Cir. 2006).
A party is entitled to summary judgment if the “movant
shows that there is no genuine dispute as to any material fact

-- 6 of 9 --

SWOGER V. RARE COIN WHOLESALERS 7
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party has the burden of
establishing the absence of a genuine dispute of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
court must view the evidence in the light most favorable to
the non-movant and draw all reasonable inferences in the
non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc.,
251 F.3d 1252, 1257 (9th Cir. 2001).
DISCUSSION
I. Summary Judgment
Each of Swoger’s claims for relief depended upon the
accuracy of his assertion that he had provided to Appellees
proof that their Coin was the first legal-tender gold coin
struck pursuant to an Act of Congress. For example, in his
claim for quantum meruit, Swoger alleged that he offered to
“prove that [their] coin was indeed the first legal tender coin
to be struck pursuant to an Act of Congress to circulate in the
United States.”
The Act provided that certain “foreign gold and silver
coins shall pass current as money within the United States,
and be a legal tender for the payment of all debts and
demands.” 1 Stat. at 300. It further specified which
countries’ coins qualified, at what weights, and for how much
value in American denominations. Id. On its face, the Act
did not mention domestic goldsmiths like Brasher, let alone
authorize them to mint gold coins. Therefore, the Coin was
not, as Swoger theorized, legal tender struck pursuant to the
Act. Accordingly, Swoger could not recover because he had
not provided the information he alleged he was required to
provide pursuant to the parties’ agreement.

-- 7 of 9 --

SWOGER V. RARE COIN WHOLESALERS 8
On appeal, refining a theory he first advanced in response
to summary judgment, Swoger argues that whether the Coin
was legal tender is irrelevant. Under this theory, because the
Coin was struck to conform to the weight specified in the Act
for Spanish doubloons, using the gold from Spanish
doubloons, it “did not need to be weighed, and could be used
in commerce as a $15 coin.” The claims that Swoger brought
in his complaint, however, rely on the premise that he gave
Appellees information sufficient to prove that the Coin was
legal tender—not merely that it was commonly used as a
store of value. That a coin was used as a medium of
exchange does not make it legal tender. “[C]ongress is vested
with the exclusive exercise of the . . . power of coining
money and regulating the value of domestic and foreign
coin.” The Legal-Tender Cases, 110 U.S. 421, 448 (1884).
Swoger has provided no authority for the proposition that
Congress exercised that power with respect to Appellees’
Coin. Therefore, Appellees were entitled to summary
judgment as a matter of law.
II. Discovery Ruling
Federal Rule of Civil Procedure Rule 56(d) provides that
if a party opposing summary judgment “shows by affidavit or
declaration that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue any
other appropriate order.” Swoger filed his opposition without
providing any such affidavit or declaration.
Two weeks after he filed his opposition, however, Swoger
filed a “request” that summary judgment be continued so that
he could depose Contursi. At that point, the summary-

-- 8 of 9 --

SWOGER V. RARE COIN WHOLESALERS 9
judgment motion had been fully briefed and oral argument
was pending in four days. The district court denied Swoger’s
request, holding that Swoger had “not been diligent in
pursuing discovery and [had] not shown good cause to justify
a continuance at this stage in the proceedings.” The court
reasoned that more than seven months had passed since it
reopened discovery to permit Swoger’s deposition of
Contursi, during which time trial had twice been continued to
accommodate Swoger’s discovery requests. The court also
observed that since the primary issue on summary judgment
was a pure question of law, further depositions were unlikely
to be helpful.
Swoger did not satisfy the requirements of Rule 56(d).
He failed to identify what specific facts a deposition of
Contursi would have revealed that would have precluded
summary judgment. Indeed, he could not identify such facts,
because whether Appellees were entitled to summary
judgment turned on a pure question of law: the legal status of
Appellees’ Coin. Accordingly, the district court did not
abuse its discretion by denying Swoger’s request for a
continuance. See Tatum, 441 F.3d at 1100.
CONCLUSION
All pending motions are denied as moot. The district
court’s decision is AFFIRMED.

-- 9 of 9 --