Bullion Monarch Mining, Inc. v. Newmont USA Limited , 473 F. App'x 796 ( 2012 )

FILED
NOT FOR PUBLICATION JUN 13 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BULLION MONARCH MINING, INC., No. 10-17320
Plaintiff - Appellant, D.C. No. 3:08-cv-00227-ECR-
VPC
v.
NEWMONT USA LIMITED, a Delaware MEMORANDUM*
Corporation, DBA Newmont Mining
Corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Argued and Submitted May 16, 2012
San Francisco, California
Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.
Appellant Bullion Monarch Mining, Inc. (“Bullion”) appeals the district
court’s grant of summary judgment in favor of Defendant-Appellee Newmont USA
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Limited (“Newmont”). Bullion filed suit seeking royalty payments which it alleges
Newmont owes as a successor-in-interest to a 1979 mining contract. The district
court granted summary judgment based on laches. We have jurisdiction under 28
U.S.C. § 1291, and we affirm the district court.
Under Nevada law, laches requires a showing that “there was an inexcusable
delay in seeking the petition” and “there were circumstances causing prejudice to
respondent.” Nevada v. Eighth Judicial Dist. Ct., ex rel. Cnty. of Clark, 994 P.2d
692, 697 (Nev. 2000) (internal quotations and citation omitted).
Bullion argues that it delayed in reliance on Newmont’s assurances that the
royalties owed under the 1979 contract would be paid, and that its delay was
therefore excusable. The district court, resolving the disputed facts in Bullion’s
favor, assumed that these assurances were made but found them insufficient to
excuse Bullion’s delay. We agree with the district court that “proper diligence
required some attempt to verify that Newmont’s actions were consistent with its
counsel’s alleged verbal assurance to Bullion, either by independent investigation
or by demanding accounting from Newmont.”
Bullion further argues that Newmont failed to establish that it was
prejudiced by Bullion’s delay. Bullion argues that the summary judgment ruling
should be limited in its scope as the laches defense can only apply to mining claims
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which Newmont has placed in production. Bullion contends that Newmont has not
shown, and cannot show, any prejudice as to claims that Newmont has not yet
developed. Bullion raised its prejudice argument for the first time in its Motion to
Reconsider in district court, and that court found that Bullion had waived its
argument by not raising it earlier. See School Dist. No. 1J v. ACandS, Inc., 5 F.3d
1255, 1263 (9th Cir. 1993). The district court did not abuse its discretion in so
finding. 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).
AFFIRMED.
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