Atlanta Cancer Care, P.c. v. Amgen, Inc.

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ATLANTA CANCER CARE, P.C.,
Plaintiff - Appellant,
v.
AMGEN, INC.,
Defendant - Appellee.
No. 08-55817
D.C. No. 2:08-cv-00616-R-JTL
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted October 6, 2009
Pasadena, California
Before: KLEINFELD and TALLMAN, Circuit Judges, and TRAGER,** District
Judge.
Atlanta Cancer Care appeals the district court’s order dismissing its case
with prejudice for failure to state a claim. We have jurisdiction pursuant to 28
U.S.C. § 1291. We reverse and remand.
FILED
NOV 12 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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When interpreting a contract, the “whole of a contract is to be taken
together, so as to give effect to every part, if reasonably practicable, each clause
helping to interpret the other.” Cal. Civ. Code § 1641. The Rebate Agreements
attached to Atlanta Cancer Care’s complaint refer to and incorporate the “Group
Purchasing Agreement,” which is said to contain certain definitions as well as the
“complete and actual terms and conditions” regarding the calculation of rebates
under the parties’ agreements. This Group Purchasing Agreement was not attached
to Atlanta Cancer Care’s complaint and it was not provided by Amgen when
moving to dismiss this case. Without the Group Purchasing Agreement, the
contract attached to the complaint is incomplete, thus prohibiting a reasoned and
informed interpretation of their bargain.
Additionally, in opposition to Amgen’s motion to dismiss, Atlanta Cancer
argued that the contract at issue was ambiguous. The district court disagreed,
finding the terms of the contract clear. Under California law, “courts may not
dismiss on the pleadings when one party claims that extrinsic evidence renders the
contract ambiguous.” A. Kemp Fisheries, Inc. v. Castle & Cooke, Inc., 852 F.2d
493, 496 n.2 (9th Cir.1988). “Indeed, it is reversible error for a trial court to refuse

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to consider such extrinsic evidence on the basis of the trial court's own conclusion
that the language of the contract appears to be clear and unambiguous on its face.”
Wolf v. Superior Court, 8 Cal. Rptr. 3d 649, 655 (Cal. Ct. App. 2004). Atlanta
Cancer must be allowed the opportunity to present extrinsic evidence in support of
its argument that the contract is ambiguous.
On remand, the court must consider the entire contract, including the
provisions of the Group Purchasing Agreement. The district court is directed to
allow such discovery, summary judgment practice, and trial as may be necessary to
elucidate what all the contract terms are, what they mean if there is ambiguity, and
whether they were breached.
REVERSED and REMANDED.

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