Southern Nevada TBA Supply Co. v. Universal Underwriters Insurance Co.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SOUTHERN NEVADA TBA SUPPLY No. 15-16828
COMPANY, DBA Ted Wiens Tire and
Auto Centers, D.C. No.
2:15-cv-00046-GMN-NJK
Plaintiff-Appellant,

v. MEMORANDUM*

UNIVERSAL UNDERWRITERS
INSURANCE COMPANY,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding

Argued and Submitted April 19, 2017
San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and STAFFORD,**
District Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William H. Stafford, Jr., United States District Judge
for the Northern District of Florida, sitting by designation.
Appellant Southern Nevada TBA Supply Company d/b/a Ted Wiens Tire

and Auto Centers (Appellant) challenges the district court’s orders dismissing with

prejudice and without leave to amend its insurance coverage action and denying its

motion for reconsideration. Appellant contends that the district court erred in

determining that there was no potential for insurance coverage. We review

dismissals under Rule 12(b)(6) de novo, see Syed v. M-I, LLC, 853 F.3d 492, 499

(9th Cir. 2017), as amended, and denials of motions for reconsideration for an

abuse of discretion, Tracht Gut, LLC v. Los Angeles Cty Treas. & Tax Collector (In

re Tracht Gut, LLC), 836 F.3d 1146, 1150 (9th Cir. 2016). We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

The district court properly concluded that there was no potential for

insurance coverage and thus no duty to defend because the allegations in the third-

party complaint fall squarely within the pollution exclusion. See United Nat’l Ins.

v. Frontier Ins., 99 P.3d 1153, 1158 (Nev. 2004) (en banc) (holding that insurers

have no duty to defend the insured where there is no “potential for coverage”)

(emphasis in the original). Because any amendment to Appellant’s complaint

would be futile, the district court properly denied leave to amend. See Garmon v.

Cty. of Los Angeles, 828 F.3d 837, 842 (9th Cir. 2016) (observing that “a district

2
court abuses its discretion by denying leave to amend unless amendment would be

futile”).

The district court acted within its discretion in denying Appellant’s motion

for reconsideration because Appellant presented no “newly discovered evidence,”

“clear error,” “manifest[] [i]njust[ice],” or “change in controlling law” justifying

reconsideration. Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011) (citation

omitted).

AFFIRMED.