NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 8 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CXA LA PALOMA, LLC, No. 16-15814
Plaintiff-Appellant, D.C. No.
1:15-cv-01280-MCE-JLT
v.
MOJAVE PIPELINE COMPANY; EL MEMORANDUM*
PASO NATURAL GAS COMPANY;
KERN RIVER GAS TRANSMISSION CO.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted December 5, 2017
San Francisco, California
Before: NGUYEN** and HURWITZ, Circuit Judges, and KEELEY,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
This case was submitted to a panel that included Judge Kozinski, who
recently retired. Following Judge Kozinski’s retirement, Judge Nguyen was drawn
by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Nguyen has read
the briefs, reviewed the record, and listened to oral argument.
***
The Honorable Irene M. Keeley, United States District Judge for the
Northern District of West Virginia, sitting by designation.
CXA La Paloma, LLC (“La Paloma”) appeals from the district court’s Rule
12(b)(6) dismissal of its suit against Mojave Pipeline Company, El Paso Natural Gas
Company, and Kern River Gas Transmission Company (collectively “Defendants”).
We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
1. The district court did not err in holding that EDF Trading North America
(“EDF”) was not La Paloma’s agent when entering into the relevant agreements with
Defendants. The contracts between La Paloma and EDF expressly disclaim the
creation of an agency relationship. See EBC I, Inc. v. Goldman, Sachs & Co., 832
N.E.2d 26, 31–33 (N.Y. 2009) (stating that New York law, which the La Paloma-
EDF contracts adopt, focuses on the parties’ agreement). Moreover, La Paloma does
not control EDF, a hallmark of agency. In re Parmalat Sec. Litig., 375 F.Supp.2d
278, 290 (S.D.N.Y. 2005) (applying New York law).
2. Under both Colorado and Utah law, which govern EDF’s relevant
agreements with Defendants, a third party must be an “intended” beneficiary of a
contract in order to enforce it. See Orlando Millenia, LC v. United Title Servs. of
Utah, Inc., 355 P.3d 965, 972 (Utah 2015); Parrish Chiropractic Ctrs. P.C. v.
Progressive Cas. Ins. Co., 874 P.2d 1049, 1056 (Colo. 1994). “The intent to benefit
the third party must be apparent from the agreement terms, the surrounding
circumstances, or both.” Quigley v. Jobe, 851 P.2d 236, 238 (Colo. App. 1992)
(citing E.B. Roberts Constr. Co. v. Concrete Contractors, Inc., 704 P.2d 859 (Colo.
2
1985)); see also Am. Towers Owners Ass’n, Inc. v. CCI Mech., Inc., 930 P.2d 1182,
1187–88 (Utah 1996) (“Whether a third-party beneficiary status exists is determined
by examining a written contract.”).
The district court did not err in holding that La Paloma is not a third party
beneficiary of EDF’s contracts with Defendants. La Paloma is only one of several
parties to whom EDF can ship gas under the contracts. See Parrish Chiropractic,
874 P.2d at 1056 (finding one of several potential beneficiaries is not an intended
beneficiary); SME Indus., Inc. v. Thompson, Ventulett, Stainback and Assocs., Inc,
28 P.3d 669, 685 (Utah 2001). Defendants’ knowledge that EDF regularly shipped
gas to La Paloma, without more, did not entitle La Paloma to enforce the contracts.
Am. Tower Owner Ass’n, 930 P.2d at 1188.
3. Defendants’ FERC tariffs disclaim any obligations relating to gas quality
and gas pressure once gas is delivered to EDF. La Paloma’s negligence claims are
therefore barred by the filed rate doctrine. See Cal. ex rel. Lockyer v. Dynegy, Inc.,
375 F.3d 831, 853 (9th Cir. 2004); Brown v. MCI WorldCom Network Servs., Inc.,
277 F.3d 1166, 1170 (9th Cir. 2002).
AFFIRMED.
3