High Country Paving, Inc. v. Usdc-Mmi ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: HIGH COUNTRY PAVING, INC., No. 19-72853
______________________________
D.C. No. 9:18-cv-00163-DWM
HIGH COUNTRY PAVING, INC.,
Petitioner, MEMORANDUM*
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA,
MISSOULA,
Respondent,
UNITED FIRE & CASUALTY
COMPANY,
Real Party in Interest.
Petition for Writ of Mandamus
Submitted March 31, 2020**
Seattle, Washington
Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
High Country Paving petitions for a writ of mandamus directing the district
court to vacate an order finding a waiver of work product protection and attorney-
client privilege by High Country, and ordering production of nine responsive
documents. The parties are familiar with the facts, so we do not repeat them here.
We have jurisdiction under 28 U.S.C § 1651(a), and we deny the petition.
High Country “bears the burden of establishing that [its] ‘right to issuance of
the writ is clear and indisputable.’” In re Bozic, 888 F.3d 1048, 1052 (9th Cir.
2018) (internal quotation marks omitted) (quoting Cheney v. U.S. Dist. Court, 542
U.S. 367, 381 (2004)). A writ of mandamus is governed by five factors. Bauman
v. U.S. Dist. Court, 557 F.2d 650, 654–55 (9th Cir. 1977); see also Perry v.
Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010). While “[n]ot every factor
need be present at once . . . the absence of the third factor, clear error, is
dispositive.” Perry, 591 F.3d at 1156 (quoting Burlington N. & Santa Fe Ry. Co.
v. U.S. Dist. Court, 408 F.3d 1142, 1146 (9th Cir. 2005)). High Country has failed
to carry its heavy burden to show that the district court’s order is clearly
erroneous. See In re Swift Trans. Co. Inc., 830 F.3d 913, 916–17 (9th Cir. 2016)
(internal quotation marks and citations omitted) (“It is well established that the
absence of controlling precedent weighs strongly against a finding of clear
error. If no prior Ninth Circuit authority prohibited the course taken by the district
court, its ruling is not clearly erroneous.”). Nor has High Country met factors two,
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four, or five. Only factor one weighs in High Country’s favor.
PETITION DENIED.
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