FILED
NOT FOR PUBLICATION NOV 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ATLAS EQUITY, INC., No. 09-55466
Plaintiff - Appellant, D.C. No. 8:06-cv-00602-GW
v.
MEMORANDUM *
CHASE BANK USA, N.A., FKA Chase
Manhattan Bank USA, National
Association, a national banking
association,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted November 1, 2010
Pasadena, California
Before: SCHROEDER, TALLMAN and M. SMITH, Circuit Judges.
Plaintiff-Appellant Atlas Equity, Inc. (Atlas) sued Defendant-Appellee
Chase Bank USA (Chase) for allegedly breaching the parties’ contracts governing
the sale of consumer credit card debt. As the facts and procedural history are
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
familiar to the parties, we do not recite them here except as necessary to explain
our disposition. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the
district court.
I. Breach of Contract
The written contracts are governed by Delaware common law, not the
Delaware Uniform Commercial Code (UCC). Delaware’s UCC Article 2 does not
apply because Atlas purchased debts, not goods. See Del. Code tit. 6, § 2-105(1);
see also 2 Lary Lawrence, Lawrence’s Anderson on the Uniform Commercial
Code, § 2-105:64 & nn. 1, 10 (3d ed. Supp. 2010) (stating that Article 2 does not
apply to sales of accounts receivable and loan agreements). Delaware’s UCC
Article 9 does not apply to “an assignment of accounts . . . which is for the purpose
of collection only.” Del. Code tit. 6, § 9-109(d)(5).
Although Atlas contends that the parties’ emails constitute separate contracts
that supercede the parties’ written contracts, Atlas has failed to introduce any
evidence to establish that the parties exchanged emails subsequent to the time that
they executed the written contracts. See, e.g., Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586–87 (1986) (stating that summary judgment
“opponent must do more than simply show that there is some metaphysical doubt
as to the material facts”). Because the written contracts are fully integrated
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documents, the parties’ prior email discussions may not be used to supplement or
supercede the written agreements. See Carrow v. Arnold, No. 182-K, 2006 WL
3289582, at *4–5 (Del. Ch. Oct. 31, 2006), aff’d, 933 A.2d 1249 (Del. 2007)
(unpublished table decision) (adopting lower court’s reasoning).
The contracts clearly and unambiguously provide Chase with full discretion
to “determine which Charged-off Accounts shall be eligible for sale.” Chase’s
power to select the accounts necessarily included the power to select the aggregate
amount of the accounts’ balances. Although the December 2003 contract required
Chase to sell at least $10,000,000 in account balances, there is no dispute that
Chase satisfied this obligation.
Finally, the written contracts clearly and unambiguously provide that Chase
had the power to sell to Atlas’s competitors.
II. Breach of Implied Covenant of Good Faith and Fair Dealing
Atlas’s arguments regarding the implied covenant of good faith and fair
dealing seek to add contract terms that contradict the unambiguous provisions of
the written contracts. The implied covenant cannot be used to “grant the plaintiffs,
by judicial fiat, contractual provisions that they failed to secure for themselves at
the bargaining table.” Aspen Advisors LLC v. United Artists Theatre Co., 861 A.2d
-3-
1251, 1260 (Del. 2004). The district court properly rejected the cause of action for
breach of the implied covenant.
III. Leave to File Third Amended Complaint
Atlas failed to show good cause when it requested that the district court
revise its scheduling order and permit Atlas to file a third amended complaint.
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294–95 (9th Cir. 2000). Because
Atlas failed to show that it diligently sought to amend its complaint, the district
court did not abuse its discretion in denying Atlas’s request. See id. at 1295.
AFFIRMED.
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