H&H Pharmaceuticals, LLC v. Cambrex Charles City, Inc. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
H&H PHARMACEUTICALS, LLC, No. 20-15528
Plaintiff-Appellant, D.C. No.
2:16-cv-02946-RFB-BNW
v.
CAMBREX CHARLES CITY, INC.; MEMORANDUM*
CAMBREX NORTH BRUNSWICK, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Submitted February 12, 2021**
San Francisco, California
Before: HURWITZ and BRESS, Circuit Judges, and FEINERMAN,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
H&H Pharmaceuticals, LLC, brought this diversity suit against Cambrex
Charles City, Inc., and Cambrex North Brunswick, Inc. (together, “Cambrex”),
alleging various violations of Nevada common law. The suit stems from failed
business negotiations during which H&H shared certain of its trade secrets with
Cambrex. H&H alleges that Cambrex misappropriated those trade secrets in
violation of the parties’ nondisclosure agreement. The district court granted
summary judgment to Cambrex on the ground that H&H had failed to adduce
evidence quantifying its alleged damages. We have jurisdiction over H&H’s
appeal under 28 U.S.C. § 1291, and we review de novo the district court’s
judgment. See AXIS Reinsurance Co. v. Northrop Grumman Corp., 975 F.3d 840,
844 (9th Cir. 2020).
The district court’s rationale for granting summary judgment was
straightforward. Citing Nevada substantive law, the court observed that “[p]roof of
damages is an essential element of all of H&H’s claims.” Citing Weinberg v.
Whatcom County, 241 F.3d 746, 751 (9th Cir. 2001), the court explained that
“[s]ummary judgment is appropriate when proof of damages is an essential
element of a party’s claim, and the party ‘has no expert witnesses or designated
documents providing competent evidence from which a jury could fairly estimate
damages.’” And the court noted that “H&H ha[d] not submitted any documents
identifying the amount of damages, describ[ed] how these damages shall be
2 20-15528
calculated, []or … submitted any expert testimony on the matter.” Given all this,
the court concluded that, “[b]ecause H&H ha[d] failed to proffer competent
evidence from which a jury or factfinder could estimate damages, or in the case of
[one] claim, pecuniary loss,” Cambrex was entitled to summary judgment.
In its opening appeal brief, H&H does not dispute the proposition that
damages is an essential element of each of its claims. Moreover, H&H embraces
the proposition articulated in Weinberg that in order to forestall summary
judgment, it had to “provide expert testimony and/or documents providing
competent evidence from which a jury could fairly estimate damages.” See
Magnetar Techs. Corp. v. Intamin, Ltd., 801 F.3d 1150, 1159 (9th Cir. 2015)
(holding that the plaintiff on summary judgment must “provide evidence such that
the jury is not left to ‘speculation or guesswork’ in determining the amount of
damages to award”) (quoting McGlinchy v. Shell Chem. Co., 845 F.2d 802, 811
(9th Cir. 1988)). And yet H&H’s opening brief does not point to any evidence that
would allow a jury to quantify or fairly estimate its damages.
Because H&H’s opening brief fails to show—or even attempt to show—that
the district court erred in concluding that it did not adduce competent evidence
from which a jury could calculate or estimate its damages, its appeal necessarily
fails. See Paladin Assocs. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir.
2003) (holding that the appellant’s failure to develop any challenge to a conclusion
3 20-15528
by the district court waives the issue). H&H’s belated attempt in its reply brief to
fill that hole in its opening brief is of no avail, for even if the reply brief made
cogent arguments—and it does not—arguments presented for the first time in a
reply brief are waived. See Avila v. L.A. Police Dep’t, 758 F.3d 1096, 1101 (9th
Cir. 2014) (“Arguments ‘not raised clearly and distinctly in the opening brief’ are
waived.”) (quoting McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009)).
AFFIRMED.
4 20-15528