J & J Celcom v. AT & T Wireless Services, Inc. , 508 F.3d 1177 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J&J CELCOM; LUPE AZEVEDO; 
WOODROW W. HOLMES, JR.;
LUCILLE HOSS; DANIEL MURRAY;
RAJIVE OBEROI; KENNETH L.
RAMSEY; GARY R. ROBBINS; JOANNE
ROBBINS; S&D PARTNERSHIP; CELL-
CAL IX-T9; NANCY DONNELLY;
RODGER D. FRIZ; SID DANNY HOFF;
OM PARKASH KALRA; RONALD
WILSON; DELCHI CORPORATION,
Plaintiffs-Appellants,
v.
No. 05-35567
AT&T WIRELESS SERVICES, INC.;
MCCAW CELLULAR INTERESTS INC.;  D.C. No.
CV-03-02629-MJP
AT&T WIRELESS SERVICES OF
COLORADO LLC; AT&T WIRELESS OPINION
SERVICES OF IDAHO INC.; AT&T
WIRELESS SERVICES OF WASHINGTON
LLC; BOISE CITY CELLULAR
PARTNERSHIP, formerly known as
New Boise City Cellular
Partnership; FORT COLLINS-
LOVELAND CELLULAR TELEPHONE
CO., formerly known as New Fort
Collins-Loveland Cellular
Telephone Company; GREELEY
CELLULAR CO., formerly known as
New Greeley Cellular Company;

15123
15124 J&J CELCOM v. AT&T WIRELESS SERVICES
YAKIMA CELLULAR TELEPHONE 
COMPANY, formerly known as New
Yakima Cellular Telephone
Company; MCCAW
COMMUNICATIONS OF WHEELING, 
INC.; MCCAW COMMUNICATIONS OF
TEXARKANA, INC.; AT&T WIRELESS
SERVICES OF CALIFORNIA,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
November 14, 2006—Seattle, Washington
Filed November 21, 2007
Before: Pamela Ann Rymer, Marsha S. Berzon, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
J&J CELCOM v. AT&T WIRELESS SERVICES 15125
COUNSEL
John Oitzinger, Helena, Montana, Thomas W. Hayton, Cutler
Nylander & Hayton, Seattle, Washington, for the plaintiffs-
appellants.
Brendan T. Mangan, Heller Ehrman LLP, Seattle, Washing-
ton, for the defendants-appellees.
15126 J&J CELCOM v. AT&T WIRELESS SERVICES
OPINION
TALLMAN, Circuit Judge:
On March 26, 2003, plaintiff J&J Celcom along with other
former owners of minority interests in nine general partner-
ships involving cellular telephone businesses filed a diversity
suit in the United States District Court for the Western Dis-
trict of Washington alleging that the defendants, AT&T Wire-
less, Inc. (AWS) and nine of its wholly-owned subsidiaries,
violated Washington State law when AWS sold its controlling
interests in those partnerships to affiliated entities. The plain-
tiffs asserted claims of breach of contract, breach of the cove-
nant of good faith and fair dealing, breach of fiduciary duties,
misrepresentation, tortious interference, and unjust enrich-
ment. The defendants moved for summary judgment, and the
plaintiffs cross-moved for partial summary judgment as to lia-
bility. The district court granted summary judgment in the
defendants’ favor, and denied the plaintiffs’ motion. This
appeal followed.
In a December 26, 2006, memorandum disposition, we
affirmed the district court’s rulings on all issues save for one.
We certified a state law question, framed as follows, to the
Washington Supreme Court in a separate order:
Does a controlling partner violate the duty of loyalty
to the partnership or to dissenting minority partners
where the controlling partner causes the partnership
to sell all its assets to an affiliated party at a price
determined by a third-party appraisal, when the
appraisal and the parties to the transaction are dis-
closed and the partnership agreement allows for sale
of assets upon majority or supermajority vote, but
the partnership agreement is silent on the subject of
sale to a related party?
J&J Celcom v. AT&T Wireless Services, Inc., 481 F.3d 1138,
1143 (9th Cir. 2007).
J&J CELCOM v. AT&T WIRELESS SERVICES 15127
At the time of the order, “[n]o Washington court ha[d] had
occasion to harmonize state case law concerning the fiduciary
duty of loyalty with the Revised Uniform Partnership Act.”
Id. at 1142 (citing Wash. Rev. Code §§ 25.05.005-.907). We
noted that “[w]hether a trial on the minority owners’ fiduciary
duty of loyalty claim is necessary depends entirely upon the
answer provided by the Supreme Court of Washington to our
certified question.” J&J Celcom, 481 F.3d at 1142.
[1] On October 25, 2007, the Washington Supreme Court
answered the certified question in the negative, finding that a
controlling partner does not violate the duty of loyalty where
the controlling partner causes the partnership to sell its assets
to an affiliated party. J&J Celcom v. AT&T Wireless Servs,
Inc. ___ P.3d ___, 2007 WL 3105742 (Wash. Oct. 25, 2007).
The partnership agreements at issue are dependent upon
Washington law for the question before us. This answer,
therefore, disposes of the last remaining issue between the
parties in favor of the defendants.
AFFIRMED.