Pacific Enterprises I, LLC v. Amco Insurance Co.

FILED
NOT FOR PUBLICATION
JUN 26 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PACIFIC ENTERPRISES I, LLC, FKA No. 15-16042
Pacific Enterprises, LLC,
D.C. No.
Plaintiff-Appellant, 2:14-cv-01757-JCM-VCF
v.
MEMORANDUM*
AMCO INSURANCE COMPANY,
Defendant-Appellee,
and
TRAVELERS CASUALTY INSURANCE
COMPANY OF AMERICA,
Defendant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted June 14, 2017**
San Francisco, California
*
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).
Before: SCHROEDER and N.R. SMITH, Circuit Judges, and PIERSOL,***
District Judge.
Pacific Enterprises, LLC (“Pacific”) appeals following the district court’s
grant of summary judgment in favor of AMCO Insurance Company (“AMCO”).
We affirm the district court.
Pacific’s argument relating to the “Control of Property Condition” is waived,
because it was never raised before the district court.1 See United States v. Flores-
Montano, 424 F.3d 1044, 1047 (9th Cir. 2005) (per curiam). Even if Pacific
presented the contract to the district court, the argument that a specific provision of
the contract precludes summary judgment was not sufficiently raised, because the
district court had no duty to make Pacific’s argument for it. See, e.g., Forsberg v.
Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988) (“The district judge is
not required to comb the record to find some reason to deny a motion for summary
judgment.”).
Even if the “Control of Property Condition” argument were considered,
Pacific fails to demonstrate there was a triable issue as to whether Quality Hotel
***
The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
1
There are three narrow exceptions to the waiver rule, none of which apply
here. See United States v. Flores-Montano, 424 F.3d 1044, 1047 (9th Cir. 2005)
(per curiam).
2
Furniture Sales acted under Pacific’s direction or control, because Pacific does not
present substantive arguments or cite any authority. See Williams v. Woodford, 384
F.3d 567, 587 n.5 (9th Cir. 2004) (explaining that the argument in appellant’s
opening brief must contain “appellant’s contentions as well as citations to
authorities and the record”) (citing Fed. R. App. P. 28(a)(9)(A)); Retlaw Broad.
Co. v. Nat’l Labor Relations Bd., 53 F.3d 1002, 1005 n.1 (9th Cir. 1995)
(explaining that an issue is waived if the brief does not contain the appellant’s
contentions and citations to authorities and the record).
AFFIRMED.
3