Living Ecology, Inc. v. Bosch Packaging Technology Inc ( 2020 )

NOT FOR PUBLICATION FILED
DEC 24 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 20-15042
LIVING ECOLOGY, INC.,
Plaintiff-Appellant, D.C. No.
2:18-CV-1647 JCM (NJK)
v.
MEMORANDUM*
BOSCH PACKAGING TECHNOLOGY,
INC.
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted December 7, 2020
Seattle, Washington
Before: MILLER and BRESS, Circuit Judges, and BASTIAN,** Chief District
Judge.
Living Ecology, Inc. (“LEI”) appeals the district court’s order granting
summary judgment to Bosch Packaging Technology, Inc. (“Bosch”) on the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stanley Allen Bastian, United States Chief District
Judge for the Eastern District of Washington, sitting by designation.
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grounds that LEI’s breach of contract claim was barred by the applicable statute of
limitations. We have jurisdiction under 28 U.S.C. § 1291. Because we conclude
that the district court erred in granting the motion for summary judgment, we
reverse and remand.
We review the district court’s grant of summary judgment de novo. L.F. v.
Lake Wash. Sch. Dist. #414, 947 F.3d 621, 625 (9th Cir. 2020). While viewing the
evidence in the light most favorable to the non-moving party, we must determine
“whether there are any genuine issues of material fact and whether the moving
party is entitled to judgment as a matter of law.” Johnson v. Poway Unified Sch.
Dist., 658 F.3d 954, 960 (9th Cir. 2011) (quoting Orr v. Bank of Am., NT & SA,
285 F.3d 764, 772 (9th Cir. 2002)). Reviewing de novo and viewing the facts in the
light most favorable to LEI, we conclude that several issues of material fact exist
and must be resolved by the trier of fact.
(1) There are factual disputes regarding whether the Bosch 2014 Terms
and Conditions, which purported to shorten the statute of limitations for all claims
between the parties, were identified with sufficient clarity in the invoice to be part
of the parties’ agreement. LEI argues that Bosch’s invoice did not incorporate
those terms and conditions into the contract because the invoice referred to terms
and conditions by different names and Bosch did not attach any documents to the
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invoice. Under Nevada law, “[w]here reference in a contract . . . indicates an
intention to incorporate [a document] generally, such reference becomes a part of
the contract for all purposes.” Lincoln Welding Works, Inc. v. Ramirez, 647 P.2d
381, 383 (Nev. 1982). Moreover, if the document is made a part of the contract by
express terms, the terms of the document “will control with the same force as
though incorporated in the very contract itself.” Id. at 384. However, “[f]actual
disputes regarding breach of contract are questions for a jury to decide.” State,
Univ. & Cmty. Coll. Sys. v. Sutton, 103 P.3d 8, 15 (Nev. 2004).
The district court found that Bosch’s invoice made “clear and unambiguous”
reference to the 2014 Terms and Conditions. We disagree. The invoice contained
three conflicting references to terms and conditions. The first reference was to “the
enclosed supplementary General Conditions for the Supply of Machinery.” The
second reference was to “our attached ‘Terms and Conditions.’” The third
reference was to “the attached documents and our General Terms and Conditions
of Sale.” The invoice itself also contained a section entitled “Terms and
conditions.” Moreover, both parties agree that Bosch did not attach any additional
documents to the invoice.
Bosch argues that, even if the invoice was inconsistent in its naming
conventions, the invoice still made multiple references to “enclosed” or “attached”
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documents, which must have called LEI’s attention to the existence of a collateral
document. But this argument still depends on the unresolved factual dispute of
whether the references in the invoice were clear enough to call LEI’s attention to
the specific collateral document Bosch intended to incorporate. Moreover, under
Nevada law, ambiguities in the contract are construed against the drafter, which
here was Bosch. Anvui, LLC v. G.L. Dragon, LLC, 163 P.3d 405, 407 (Nev. 2007).
(2) There are factual disputes regarding whether LEI had access to the
2014 Terms and Conditions during the contract negotiations. LEI argues that these
terms and conditions were not reasonably available because they were not attached
to the invoice, there is no evidence in the record that LEI received them, and Bosch
never told LEI where to access them. See Lincoln Welding Works, 647 P.2d at 384(considering the degree to which the parties were “acquainted” with the document
in determining whether it was incorporated by reference).
Bosch argues that LEI had access to the 2014 Terms and Conditions because
Bosch has a standard practice of attaching its terms and conditions to each invoice
and LEI had previously purchased a different piece of equipment from Bosch. But
there is nothing in the record showing that LEI received the 2014 Terms and
Conditions with its previous purchase or that LEI knew that these terms and
conditions governed all Bosch transactions. There is also nothing in the record
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indicating that Bosch directed LEI where it could access a copy of the 2014 Terms
and Conditions.
(3) There are factual disputes regarding whether LEI waived any
objections to the 2014 Terms and Conditions by not specifically requesting a copy.
Under Nevada law, when a party accepts a written contract, it cannot be excused
from the conditions of the contract due to “[i]gnorance through negligence or
inexcusable trustfulness.” Campanelli v. Conservas Altamira, S.A., 477 P.2d 870,
872 (Nev. 1970). There is no evidence in the record regarding why LEI failed to
request a copy of potential additional terms and conditions, despite the references
in the invoice.
Therefore, because there are genuine disputes of material fact as to whether
Bosch’s sales contract incorporated the 2014 Terms and Conditions, the district
court erred in granting summary judgment. We accordingly remand to the district
court for further proceedings consistent with this disposition.
REVERSED and REMANDED.
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