Unpublished Disposition, 931 F.2d 896 (9th Cir. 1989)

MEMORANDUM^** 

In this diversity action for breach of contract, James O. Gouge, appeals in pro se from the order granting summary judgment in favor of his former employer, GDP Technologies, Inc. We discuss each of his contentions under separate headings. We affirm because we conclude that there is no merit to this appeal.

* James O. Gouge ("Gouge"), Patrick B. Gouge, James M. Dodson ("Dodson"), and Steven S. Porter ("Porter"), incorporated GDP Research, Inc., ("Research"), in Colorado on January 6, 1986. Medical Support Technologies, Inc., ("MST"), was incorporated in Colorado on December 9, 1986. Gouge was employed by MST pursuant to an employment contract. The contract provided for a salary of $75,000 per year. The termination clause stated that upon dismissal, MST was to pay Gouge any accrued and unpaid salary, but was not to have any further obligations to Gouge beyond the date of termination. The parties also agreed that the laws of the state of Colorado would govern the interpretation of the contract.

GDP Technologies, Inc., ("GDP"), was formed in Colorado on May 7, 1987. GDP is the result of a merger between Research and MST. Gouge entered into an employment agreement with GDP which was identical to MST's, and which superseded his employment contract with MST.

On October 21, 1987, Dodson, Gouge, and Porter each signed a document entitled "Resolution of the Board of Directors of GDP Technologies, Inc." The resolution stated that the "officers of the Corporation, at a time deemed appropriate by the Board of Directors of the Corporation, each shall be paid a one time sum covering the time contributed to the Corporation prior to October, 1987."

Gouge's employment was terminated on October 10, 1988. He filed an action for breach of contract in the Arizona Superior Court on November 9, 1988. The action was removed to the District Court of Arizona on diversity grounds on January 24, 1989. GDP filed a motion for summary judgment on February 28, 1989. Summary judgment was granted in favor of GDP on November 2, 1989.

Gouge has brought this breach of contract action against GDP for wages he claims are owed him for a period of time beginning in October 1985, before the incorporation of Research, and ending with the termination of his employment on October 10, 1988. In support of "Plaintiff's Response to defendant's Motion for Summary Judgment" filed on September 7, 1989, Gouge attached drawings and receipts for equipment purchased for the development of technology, to prove that he is owed back wages for the money, time, and effort he expended prior to the incorporation of Research on January 6, 1986.

Gouge contends that "there was no mention of stock in lieu of salary or of donated effort" for the services he rendered between January 1986, and April 1987. (Appellant's Opening Brief at 4). Gouge argued at the summary judgment proceeding that the October 21, 1987 resolution memorialized his belief that he would be paid at the rate of $6,250 per month.

Gouge asserts that his back wages for the period between April 1987, and October 21, 1987, became due and owing when he was terminated, pursuant to the terms of his employment agreement. He maintains that the October 21, 1987 resolution did not modify the terms of his employment agreement.

In support of its motion for a summary judgment, GDP presented evidence that Gouge, Dodson, and Porter were compensated for their services from January 6, 1986, through April 1987, by receiving shares of GDP.

GDP submitted the October 21, 1987 resolution as proof that all back wages owed to Gouge for services performed between April 1987, and October 21, 1987, are not due until the Board deems it appropriate to pay these sums.

GDP presented evidence, in the form of an affidavit from Dodson, that Gouge was paid in full for services performed between October 21, 1987, and October 10, 1988. Gouge did not present any admissible evidence to rebut the facts set forth in the Dodson affidavit. Instead Gouge relies upon a schedule attached to his complaint filed in the Superior Court of Arizona. A grant of summary judgment is reviewed de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990).

Gouge's claim for wages is based on the theory of breach of contract. Gouge has not produced any evidence that Research or MST agreed to compensate him for time and effort spent prior to incorporation. The drawings and receipts Gouge has presented to prove that he performed pre-incorporation services do not demonstrate that GDP or MST agreed to compensate him for work performed prior to their incorporation.

GDP presented unrebutted evidence that Gouge was given stock instead of salary for services rendered from January 6, 1986, the date Research was incorporated, through April 1987.

The October 21, 1987 resolution, signed by Gouge, expressly deferred payment for compensation of services he performed for GDP. Gouge's right to payment for services rendered between April 1987, and October 21, 1987, is not in dispute by GDP. At the time the resolution was passed, GDP was not in a financial condition to pay its officers for wages earned during that time period. GDP presented evidence to the district court that "the financial condition of GDP has not changed or improved significantly since October 21, 1987." (Dodson affidavit in support of GDP's "Motion for Summary Judgment," at 3). As a result, it has been unable to pay for services performed by Gouge between April 1987, and October 21, 1987. Id.

"Where a contract ... does not fix the time of performance, the law presumes that it is to be performed within a reasonable time. What is a reasonable time depends on the particular facts and circumstances." Gould v. Rite-Way Oil and Investment Co., 143 Colo. 65, 351 P.2d 849, 851 (1960). Gouge has not demonstrated that GDP's financial condition, at the time this action was filed, made it unreasonable to delay payment for the services performed by Gouge between April 1987 and October 21, 1987. Gouge's allegation in his complaint for breach of contract cannot be considered in support of his contention that there is a material issue of fact in dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (" [r]ule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves...."). Gouge failed to present any evidence in the district court that GDP breached the employment agreement as modified on October 21, 1987. Accordingly, the district court did not err in granting summary judgment.

III

Gouge claims that he was denied due process when the district court commenced the summary judgment hearing before he completed discovery. We review the district court's rulings concerning discovery for an abuse of discretion. Ah Moo v. A.G. Becker Paribas, Inc., 857 F.2d 615, 619 (9th Cir. 1988).

In Gouge's response to GDP's motion for a summary judgment, he requested additional time to pursue discovery. The district court granted Gouge's request and postponed the hearing until October 23, 1989. The hearing on GDP's motion for a summary judgment was not held until nearly eight months after it was originally filed. Gouge had not initiated any discovery efforts in the intervening time. Moreover, since the district court did not set a discovery cut-off date, he could have pursued discovery up to the day of the hearing on the motion for summary judgment. Gouge had ample time to complete his discovery. The district court did not abuse its discretion in commencing the summary judgment hearing before Gouge had completed discovery.

IV

Gouge claims that by granting GDP's motion for summary judgment, he was denied his right to a jury trial. Entitlement to a jury trial is a question of law that is reviewed de novo. Standard Oil Co. of Cal. v. Arizona, 738 F.2d 1021, 1023 (9th Cir. 1984), cert. denied, 469 U.S. 1132 (1985).

A summary judgment proceeding does not deprive a losing party of its seventh amendment right to a jury trial. Fidelity & Deposit Co. v. United States, 187 U.S. 315, 319-21 (1902). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (there is no right to a jury trial where the evidence is "so one sided that one party must prevail as a matter of law.").

V

Gouge claims that the evidence he presented to the district court was ignored. At the summary judgment proceeding, there appeared to be some confusion concerning the record before the court. GDP claimed that Gouge's affidavit and exhibits were not part of the record. In support of this contention, GDP cited the district court's order of August 16, 1989, which stated " [t]hat documents and attachments have never been filed with this Court and are not now part of the record in this action." Although Gouge's documents were not part of the record on August 16, 1989, they were submitted to the district court on September 7, 1989, in support of the pleading entitled "Plaintiff's Response to Defendant's Motion for Summary Judgment." Gouge has failed to demonstrate that the district court ignored his evidence. Furthermore, we have reviewed the evidence submitted by Gouge in opposition to the motion for summary judgment in fulfilling our duty to determine independently whether a genuine issue of fact is in dispute in the matter requiring a trial. See Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986) (the appellate court's review is governed by the same standard used by the trial court under Fed. R. Civ. P. 56(c)).

VI

On August 24, 1989, pursuant to Rule 34 of the Federal Rules of Civil Procedure, Gouge filed a motion to compel Fredda Jo Gouge to produce certain enumerated documents. The district court denied Gouge's request since Fredda Jo Gouge was not a party to the litigation. We review a district court's rulings concerning discovery for an abuse of discretion. Ah Moo v. A.G. Becker Paribas, Inc., 857 F.2d 615, 619 (9th Cir. 1988).

Rule 34(a) provides that, " [a]ny party may serve on any other party a request...." Fed. R. Civ. P. 34 (emphasis added). Fredda Jo Gouge is not a party to this action. Therefore, she cannot be compelled to produce documents pursuant to Rule 34. Ah Moo, at 416. The district court did not err in denying Gouge's motion to compel Fredda Jo Gouge to produce certain documents.

VII

In a motion filed July 3, 1989, Gouge requested the appointment of counsel pursuant to Sec. 1915(d). This request was denied. A district court's decision on a motion for appointment of counsel pursuant to 28 U.S.C. § 1915 is reviewed for an abuse of discretion. McElyea v. Babbitt, 833 F.2d 196, 199-200 (9th Cir. 1987).

Counsel may be appointed in civil matters only under exceptional circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). "A finding of exceptional circumstances requires an evaluation of both 'the likelihood of success on the merits [and] the ability of the petitioner to articulate his claim pro se in light of the complexity of the legal issues involved.' " Id., citing Weygant v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

As discussed above, because the documentary evidence demonstrates that there is no likelihood of success on the merits and the legal issues presented are not complex, the appointment of counsel is not warranted. Therefore, the district court did not abuse its discretion in denying Gouge's request for counsel.

VIII

At the summary judgment hearing, the district court also denied Gouge's oral motion for a transfer to the District Court of Colorado where other litigation with GDP was pending. (GDP Technologies Inc. v. James O. Gouge, 89-Z-0246). We review the district court's denial of a motion for a change of venue for abuse of discretion. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979).

Gouge knew long before the summary judgment proceeding that litigation was pending in Colorado. Nevertheless, he chose to file this action in Arizona. Furthermore, Gouge's motion for a transfer to Colorado was made orally. GDP had no notice or an opportunity to prepare a response. Swindell-Dressler Corp. v. Dumbauld, 308 F.2d 267, 273-74 (3rd Cir. 1962). The district court did not abuse its discretion in denying Gouge's oral motion for a transfer to the District Court of Colorado.

IX

Gouge maintains that Judge Rosenblatt should have disqualified himself pursuant to 28 U.S.C. § 455(a), (b) (1). Gouge contends that Judge Rosenblatt was prejudiced against him because of his pro se status, and that the Judge took advantage of his unfamiliarity with the court rules.

"The test for disqualification under 455(a) is an objective one: whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983). To require recusal, the alleged bias or prejudice must not stem from what the judge learns by participating in the litigation itself. Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1387-88 (9th Cir. 1988).

A review of the reporter's transcript from the summary judgment proceeding, reveals that Judge Rosenblatt conducted these proceedings fairly and impartially. In fact, he granted Gouge a great deal of latitude because of his pro se status. Recusal was not required.

AFFIRMED.