Andes Industries, Inc.; Pct International, Inc. v. Ezconn Corporation; Egtran Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDES INDUSTRIES, INC.; PCT
INTERNATIONAL, INC.,
Plaintiffs-Appellants,
v.
EZCONN CORPORATION; EGTRAN
CORPORATION,
Defendants-Appellees.
No. 17-17058
18-15760
D.C. No. 2:15-cv-01810-NVW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted May 14, 2019
San Francisco, California
Before: THOMAS, Chief Judge, and McKEOWN and GOULD, Circuit Judges.
Andes Industries, Inc. and PCT International, Inc. (collectively, “Andes”)
appeal various decisions made by the district court in these companion appeals: a
grant of summary judgment, denial of relief under Federal Rule of Civil Procedure
56(d), grant of a motion to dismiss, and award of attorney’s fees. We have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAY 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court on all of its
orders, except we affirm in part and reverse in part the attorney’s fees award.
Because the parties are familiar with the facts, we need not recount them here.
A denial for a request for relief under Rule 56(d) is reviewed for abuse of
discretion. See Landmark Dev. Corp. v. Chambers Corp., 752 F.2d 369, 373 (9th
Cir. 1985) (per curiam). We review de novo the district court’s grant of summary
judgment, Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011), and
dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6), Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). We also review the
applicability of an attorney’s fees provision de novo. See Hall v. Elected Officials
Retirement Plan, 383 P.3d 1107, 1119 (Ariz. 2016).
Pursuant to Rule 56(d), “where a party has had no previous opportunity to
develop evidence and the evidence is crucial to material issues in the case,
discovery should be allowed before the trial court rules on a motion for summary
judgment.” Program Eng’g, Inc. v. Triangle Publ’ns, Inc., 634 F.2d 1188, 1193
(9th Cir. 1980). The district court’s use of the 30(b)(6) testimony procedure—
though unusual—was a tool of its own case management. Nothing, including this
procedure, prevented Andes from conducting the discovery it needed between July
2016 and September 2017. We conclude that the district court did not abuse its
discretion in denying Andes’ request for relief under Rule 56(d).

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The standard for granting leave to amend a complaint is liberal, Morongo
Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990), but not
infinitely so. The district court applied the appropriate analysis to Andes’s motion,
Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004), and its determination to
deny leave to amend was not an abuse of discretion.
We also affirm the grant of summary judgment and the motion to dismiss for
the reasons identified by the district court.
Finally, we affirm in part and reverse in part the district court’s award of
attorney’s fees. Contrary to the district court’s order, EZconn Corporation
(“EZconn”) and eGtran Corporation (“eGtran”) cannot collect fees for third parties.
Arizona law permits for the recovery of attorney’s fees for actions “arising out of a
contract” for “the successful party.” Ariz. Rev. Stat. § 12-341.01(A). Though we
agree that Andes’s contract and non-contract claims arise out of the contract,
EZconn and eGtran lacked statutory standing to seek fees on behalf of other parties
in the litigation. Accordingly, we reverse and remand the attorney’s fees order for
the district court to recalculate the fees owed to EZconn and eGtran for their
individual representations. This directive also applies to fees related to the earlier
Ninth Circuit appeal in which EZconn was not a party.
Each party shall pay its own cost on appeal. The motion to take judicial
notice is moot.

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AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

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