FILED
NOT FOR PUBLICATION JUL 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GCM AIR GROUP, LLC, a Nevada No. 09-15825
limited liability company,
D.C. No. 3:07-cv-00168-BES-
Plaintiff - Appellant, RAM
v.
MEMORANDUM *
CHEVRON U.S.A., INC., a Pennsylvania
corporation,
Defendant - Appellee.
GCM AIR GROUP, LLC, a Nevada No. 09-16412
limited liability company,
D.C. No. 3:07-cv-00168-BES-
Plaintiff - Appellant, RAM
v.
CHEVRON U.S.A., INC., a Pennsylvania
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Brian E. Sandoval, District Judge, Presiding
Argued and Submitted June 17, 2010
San Francisco, California
Before: HAWKINS, FISHER, and TYMKOVICH,** Circuit Judges.
GCM Air Group, LLC, filed various contract and tort claims against
Chevron U.S.A., Inc., regarding contamination and remediation on adjacent
properties located in Nevada. The district court exercised jurisdiction pursuant to
28 U.S.C. § 1332. GCM appeals the district court’s decisions granting Chevron
summary judgment, denying GCM’s request for reconsideration, rejecting GCM’s
motion to certify questions to the Nevada Supreme Court, and awarding Chevron
attorneys’ fees. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part,
reverse in part, and remand for further proceedings consistent with our disposition.
Summary Judgment
With one exception—the trespass claim relating to the adjacent restaurant
property—we hold that the district court did not err in granting Chevron summary
judgment on GCM’s claims.
The record does not demonstrate the elements necessary for GCM to
succeed on its negligent misrepresentation, breach of contract, implied covenant of
**
The Honorable Timothy M. Tymkovich, Circuit Judge for the Tenth
Circuit, sitting by designation.
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good faith and fair dealing, and interference with prospective economic advantage
claims. The evidence presented does not show Chevron provided GCM false
information or that Chevron had a pecuniary interest in the sale of the properties to
GCM. See Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1387 (Nev. 1998) (listing
the elements of a negligent misrepresentation claim). Nor did GCM adequately
develop a non-disclosure argument. See Schnelling v. Budd (In re Agribiotech,
Inc.), 291 F. Supp. 2d 1186, 1190S93 (D. Nev. 2003) (recognizing an omission
may form the basis of a negligent misrepresentation claim).
The evidence set forth also fails to demonstrate Chevron breached its
agreements with GCM by not satisfying the Washoe County Health Department’s
remediation requirements. Similarly, the evidence provided does not demonstrate
Chevron deliberately delayed the remediation of the properties or that a special
element of reliance or fiduciary duty existed in GCM and Chevron’s relationship.
See Hilton Hotels Corp. v. Butch Lewis Prods., Inc., 808 P.2d 919, 922S23 (Nev.
1991) (discussing the elements of implied covenant of good faith and fair dealing
claims brought in contract and tort). Nor does the evidence show Chevron
intentionally interfered with GCM’s potential sale of the properties. See M & R
Inv. Co., Inc. v. Goldsberry, 707 P.2d 1143, 1144 (Nev. 1985) (“There can be no
doubt that proof of intentional interference is a sine qua non of the tort [of
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interference with prospective economic advantage].” (emphasis in original)
(alteration omitted)).
Because GCM’s negligence claim amounts to a claim Chevron failed to
remediate in accordance with the terms of the parties’ agreements, and because
GCM seeks relief for damages resulting from that alleged failure, the economic
loss doctrine bars the claim. See Terracon Consultants W., Inc. v. Mandalay
Resort Grp., 206 P.3d 81, 86 (Nev. 2009) (“The economic loss doctrine marks the
fundamental boundary between contract law, which is designed to enforce the
expectancy interests of the parties, and tort law, which imposes a duty of
reasonable care and thereby generally encourages citizens to avoid causing
physical harm to others.” (internal quotation marks and alterations omitted)); see
also Giles v. GMAC, 494 F.3d 865, 876 (9th Cir. 2007) (noting tort claims
amounting “to nothing more than a failure to perform a promise contained in a
contract” have been barred by the economic loss doctrine).
Regarding GCM’s strict liability claim, because storing gasoline in
underground tanks beneath gas stations can be accomplished safely with
reasonable care, is commonplace, is of significant utility to the community, and is
appropriate in commercial and residential settings, and because nothing in the
record demonstrates otherwise, such storage is not an ultra-hazardous activity
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subject to strict liability. See Valentine v. Pioneer Chlor Alkali Co., 864 P.2d 295,
297 (Nev. 1993) (providing the factors for determining whether an activity is ultra-
hazardous).
Concerning GCM’s property damage claims relating to the leased station
property, the record demonstrates GCM knew of or reasonably could have learned
of sufficient facts supporting those claims when it acquired the properties in 2002.
See Petersen v. Bruen, 792 P.2d 18, 20 (Nev. 1990) (ruling the statutory period of
limitations is tolled “until the injured party discovers or reasonably should have
discovered facts supporting a cause of action”). Thus, the claims are barred by the
statute of limitations. See Nev. Rev. Stat. § 11.220 (providing tort claims
concerning property damage must be brought within four years of accrual). To the
extent GCM asserts on appeal property damage claims relating to the adjacent
restaurant property on appeal, those claims are barred because GCM did not
adequately present the argument below that it had additional, separate claims as to
the restaurant property. See F.T.C. v. Neovi, Inc., --- F.3d ---, No. 09-55093, 2010
WL 2365956, at *7 n. 7 (9th Cir. June 15, 2010) (stating issues not properly raised
in the district court are waived on appeal).
As to GCM’s separate trespass claim (Claim 16), whether GCM discovered
or should have discovered facts supporting this claim before 2005 is a disputed
5 09-15825
material fact. See Siragusa v. Brown, 971 P.2d 801, 812 (Nev. 1998) (holding the
time of accrual may be decided as a matter of law only where uncontroverted
evidence demonstrates the plaintiff discovered or should have discovered the
injurious conduct). As a result, it cannot be determined on this summary judgment
record that this claim is time-barred.
Reconsideration
Because GCM concedes its motion for reconsideration was filed outside of
Rule 59(e)’s 10-day window, see Am. Ironworks & Erectors, Inc. v. N. Am. Constr.
Corp., 248 F.3d 892, 898S99 (9th Cir. 2001) (providing a motion for
reconsideration is treated as a Rule 60(b) motion, unless it is filed within 10 days
of the entry of judgment), and the unique circumstances doctrine is inapplicable,
see Wiersma v. Bank of the West (In re Wiersma), 483 F.3d 933, 940 (9th Cir.
2007) (stating the doctrine applies only where a court has “explicitly misled” a
party), the district court properly treated the motion under Rule 60(b). Further,
because GCM’s motion merely restated the contentions it set forth in its opposition
to summary judgment, our above analysis concerning the district court’s summary
judgment decision applies equally here. See Fed. R. Civ. P. 60(b) (providing
grounds for relief).
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Certification
The district court did not abuse its discretion by declining to certify several
issues to the Nevada Supreme Court. GCM failed to seek alteration or amendment
of the district court’s judgment on the claims relating to the issues it sought to
certify, see Nev. R. App. P. 5(a), and the district court properly determined it had
adequate guidance concerning how the Nevada Supreme Court would decide the
economic loss doctrine and ultra-hazardous liability issues.
Attorneys’ Fees
Because the district court will necessarily be required to reevaluate the
attorneys’ fees award given our disposition, we decline to consider GCM’s
contentions regarding that award at this juncture.
AFFIRMED in part, REVERSED in part, and REMANDED for further
proceedings consistent with this disposition. Each party shall bear its own costs on
appeal.
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