M-Cubed LLC v. Maersk Line Ltd , 374 F. App'x 701 ( 2010 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                              MAR 11 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    M-CUBED LLC, a Washington limited                No. 08-35194
    liability company; JOHN T. SESSIONS
    HISTORIC AIRCRAFT FOUNDATION,                    D.C. No. 2:06-cv-01403-MJP
    Plaintiffs - Appellants,
    MEMORANDUM *
    v.
    MAERSK LINE LTD, a Delaware
    corporation,
    Defendant,
    and
    MAERSK INC, a New Your corporation;
    AP MOLLER-MAERSK A/S, a Danish
    Company,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the Western District of Washington
    Marsha J. Pechman, District Judge, Presiding
    Argued and Submitted August 6, 2009
    Seattle, Washington
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    Before: PREGERSON and BEA, Circuit Judges, and MAHAN, ** District Judge.
    M-Cubed LLC (“M-Cubed”) interlocutorily appeals the district court’s
    partial grant of summary judgment in favor of Maersk Line Ltd. (“Maersk”). The
    parties are familiar with the facts of this case, which we repeat here only to the
    extent necessary to explain our decision.
    I. Jurisdiction
    “[D]istrict courts shall have original jurisdiction, exclusive of the courts of
    the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to
    suitors in all cases all other remedies to which they are otherwise entitled.” 28
    U.S.C. § 1333(1). The “savings to suitors” clause “permits the plaintiff to bring an
    action ‘at law’ in the federal district court, provided the requirements of diversity
    of citizenship and amount in controversy are met.” Ghotra v. Bandila Shipping,
    Inc., 
    113 F.3d 1050
    , 1054 (9th Cir. 1997). “If a claim for relief is within the
    admiralty or maritime jurisdiction and also within the court’s subject-matter
    jurisdiction on some other ground, the pleading may designate the claim as an
    admiralty or maritime claim . . . .” Fed. R. Civ. P. 9(h)(1). “If [Plaintiff] wants the
    admiralty rules to apply, the plaintiff or other party asserting a claim needs to
    include a statement in the pleadings substantially like the following: ‘This is an
    **
    The Honorable James C. Mahan, United States District Judge for the
    District of Nevada, sitting by designation.
    admiralty or maritime claim within the meaning of Rule 9(h).’” 1 Steven F.
    Friedell, Benedict on Admiralty § 133 at 8-67 (7th ed., rev. 2009). “If a claim
    arises within the admiralty jurisdiction and some other basis of federal jurisdiction
    and the plaintiff . . . does not want the admiralty procedures to be applied (for
    example if it wants to have a jury trial), then the Rules of Civil Procedure do not
    require the plaintiff . . . to state anything further.” 
    Id. § 133,
    at 8-68 (parenthetical
    in original).
    In the case before us, M-Cubed did not designate its claim as an admiralty
    claim. Furthermore, M-Cubed’s complaint made a jury demand, which would not
    be available in admiralty. See Fed. R. Civ. P. 38(e). M-Cubed’s jurisdictional
    statement also clearly referenced the diversity and amount in controversy
    requirements of a case brought at law. The district court granted certification
    under 28 U.S.C. § 1292(b). Because we agree that resolution of this appeal would
    materially advance the ultimate termination of litigation, we exercise our discretion
    to permit this appeal. See 28 U.S.C. § 1292(b).
    II. Analysis
    As a preliminary matter, we conclude that the district court erred in barring
    the parties from filing reply briefs. We review a district court’s compliance with
    local rules for an abuse of discretion. Bias v. Moynihan, 
    508 F.3d 1212
    , 1223 (9th
    Cir. 2007). Under Western District of Washington Local Civil Rule 7(b)(3), “[t]he
    moving party may, within the time prescribed in [Local Civil Rule] 7(d), file . . . a
    reply brief in support of the motion, together with any supporting material
    described in subsection (1).” Here, however, the district court forbade the parties
    to file reply briefs and materials at any time, stating “I don’t use them. I’m not
    going to read them.” [ER 19]. The district court abused its discretion, and should
    have considered the reply materials.
    Proceeding to the merits of this appeal, we review de novo a district court’s
    decision to grant summary judgment. Universal Health Servs., Inc. v. Thompson,
    
    363 F.3d 1013
    , 1019 (9th Cir. 2004). Viewing the evidence in the light most
    favorable to the nonmoving party, we must determine if there are any genuine
    issues of material fact and whether the district court properly applied the law. 
    Id. We conclude
    that there are triable issues of material fact. Specifically, a
    reasonable factfinder could conclude that Maersk intended to abandon the cargo to
    Hong Kong authorities, and therefore deviated from the contract of carriage. Prior
    to the cargo’s arrival in Hong Kong, Maersk employees stated that the cargo “will
    be seized,” and “knew that this sort of thing was something called strategic
    commodity - a license was required.” Maersk employees also described the cargo
    to Hong Kong officials as a “military aircraft.” Considering this evidence, a
    reasonable factfinder could find that Maersk was substantially certain that the MIG
    4
    was a strategic good subject to forfeiture. See Vision Air Flight Serv., Inc. v. M/V
    National Pride, 
    155 F.3d 1165
    , 1176 (9th Cir. 1998).
    Accordingly, we REVERSE the district court’s grant of summary judgment
    and REMAND for trial.
    5