389 Orange Street Partners v. Arnold, No. 97-35877

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation179 F.3d 656
Docket NumberNo. 97-35877,98-35240.,98-35005
Parties389 ORANGE STREET PARTNERS, a Connecticut Partnership, Defendant Cross-Claimant Appellee, and Clifford Robinson, Defendant-X-Claim Third-Party Plaintiff Appellant, v. Richard L. ARNOLD; Kyle Arnold; Regis Conlon, Third-party Defendant Cross-Claimants Appellees. and Trail Blazers Inc., an Oregon Corporation, Plaintiff-Cross Defendant-Appellee, v. Sebastian S. Ciarcia, and Law Office of Sebastian Ciarcia, a Connecticut Corporation, Third-Party Defendant Appellee. Clifford Robinson, Defendant Cross-Claimant Third-Party Plaintiff Appellant, v. Sebastian S. Ciarcia, and Law Office of Sebastian Ciarcia, a Connecticut Corporation, Richard L. Arnold; Kyle Arnold; Regis Conlon, Third-Party Defendants Cross-Claimants Appellees. Trail Blazers Inc., an Oregon Corporation, Plaintiff-Cross Defendant, and 389 Orange Street Partners, Defendant-Cross Claimant. ATrail Blazers Inc., and Oregon Corporation, Plaintiff, v. 389 Orange Street Partners, a Connecticut Partnership, Defendant-Cross Claimant Appellee. and Clifford Robinson, Defendant Cross-Claimant Third-Party Plaintiff Appellant, v. Sebastian S. Ciarcia, and Law Office of Sebastian Ciarcia, a Connecticut Corporation, Richard L. Arnold; Kyle Arnold; Regis Conlon, Third-Party Defendants Appellees.
Decision Date22 March 1999

179 F.3d 656

389 ORANGE STREET PARTNERS, a Connecticut Partnership, Defendant Cross-Claimant Appellee, and
Clifford Robinson, Defendant-X-Claim Third-Party Plaintiff Appellant,
v.
Richard L. ARNOLD; Kyle Arnold; Regis Conlon, Third-party Defendant Cross-Claimants Appellees.
and
Trail Blazers Inc., an Oregon Corporation, Plaintiff-Cross Defendant-Appellee,
v.
Sebastian S. Ciarcia, and Law Office of Sebastian Ciarcia, a Connecticut Corporation, Third-Party Defendant Appellee.

Clifford Robinson, Defendant Cross-Claimant Third-Party Plaintiff Appellant,
v.
Sebastian S. Ciarcia, and Law Office of Sebastian Ciarcia, a Connecticut Corporation, Richard L. Arnold; Kyle Arnold; Regis Conlon, Third-Party Defendants Cross-Claimants Appellees.

Trail Blazers Inc., an Oregon Corporation, Plaintiff-Cross Defendant, and
389 Orange Street Partners, Defendant-Cross Claimant.

ATrail Blazers Inc., and Oregon Corporation, Plaintiff,
v.
389 Orange Street Partners, a Connecticut Partnership, Defendant-Cross Claimant Appellee.
and
Clifford Robinson, Defendant Cross-Claimant Third-Party Plaintiff Appellant,
v.
Sebastian S. Ciarcia, and Law Office of Sebastian Ciarcia, a Connecticut Corporation, Richard L. Arnold; Kyle Arnold; Regis Conlon, Third-Party Defendants Appellees.

Nos. 97-35877, 98-35005, 98-35240.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 3, 1998.

Decided March 22, 1999.

Amended June 4, 1999.


179 F.3d 657

COPYRIGHT MATERIAL OMITTED

179 F.3d 658
COPYRIGHT MATERIAL OMITTED
179 F.3d 659
John Clinton Geil, Geil & Clark, P.C., Portland, Oregon, for defendant cross-claim third-party plaintiff-appellant Clifford Robinson

Steven M. Rose, Rose, Senders and Bovarnick, Portland, Oregon, for defendant cross-claimant appellee 389 Orange Street Partners.

Sebastian S. Ciarcia, (In Pro Per), Law Office of Sebastian Ciarcia, a Connecticut Corporation, Meriden, Connecticut, for third-party defendants cross-claimants appellees Sebastian S. Ciarcia, Richard L. Arnold, Kyle Arnold and Regis Conlon.

Before: NOONAN, DAVID R. THOMPSON, and TROTT, Circuit Judges.

ORDER1

The opinion filed March 22, 1999 170 F.3d 1200, is hereby amended as follows:

At slip opinion page 2497 170 F.3d at 1208, at the end of subsection E, add a paragraph that reads:

The district court did see the joint pretrial order in which Robinson first alleged breach of trust against Ciarcia, after summary judgment had been granted in favor of OSP, the Arnolds, and Conlon. However, the district court
179 F.3d 660
did not sign the order and, as with the earlier judgment, summary judgment was entered in favor of Ciarcia before the pretrial conference took place. Robinson cites Federal Rule of Civil Procedure 16(e) and District of Oregon Rule 16.6(d) for the proposition that a pretrial order amends the pleadings. In order for this rule to take effect, the district court must adopt a proposed pretrial order by signing it. Robinson's breach of trust claims were not before the district court.

With these amendments, the petition for rehearing is DENIED, and the suggestion for rehearing en banc is DENIED. Judge Noonan would vote to grant the petition for rehearing and recommends granting the suggestion for rehearing en banc.

OPINION

TROTT, Circuit Judge:

I

Overview

Clifford Robinson appeals three final judgments of the District of Oregon in favor of cross-claim defendants Orange Street Partners ("OSP"), Regis Conlon, Sebastian Ciarcia, and Richard and Kyle Arnold (collectively, "Appellees"). The action originated as an interpleader action brought by Trailblazers, Inc. against Robinson and OSP to determine the appropriate recipient of wages earned by Robinson. Robinson brought several cross-claims against Appellees. The first judgment awarded the wages to OSP under a promissory note and security agreement and dismissed Robinson's claims against all but Ciarcia as time-barred. The second judgment granted attorneys' fees to OSP. The third judgment dismissed Robinson's claims against Ciarcia as time-barred. We have jurisdiction under 28 U.S.C. § 1291 (1994), and we affirm in all respects.

II

Background

Acting through his then-agent, Larry Gillman, Robinson built a home in Connecticut at a total cost of approximately $1,500,000. Under a power of attorney, Gillman obtained initial financing on Robinson's behalf from Shawmut Mortgage Co. and Berkshire Bank, which was later replaced by a loan from Sears Mortgage Co. in the amount of $1,125,000. Ciarcia was responsible for disbursing the Sears funds at Gillman's direction. Gillman obtained additional financing from Stillwater Pond Partners. OSP, a partnership of the Arnolds, Conlon, Ciarcia, Stillwater, and several non-parties, also made a loan to Robinson, and the loan from Stillwater was "rolled over" into the loan from OSP, for a debt to OSP of $468,000. OSP disbursed these funds at Gillman's direction.

Robinson signed a promissory note for the OSP loan in Connecticut on June 25, 1993, when his house purchase closed. At the same time, Robinson executed an "Assignment of Security and Security Agreement" to OSP, assigning his wages from Trailblazers to OSP in the event of default on the promissory note. Robinson then signed a letter to Trailblazers, placing the organization on notice of the assignment and instructing that his wages be paid to OSP on demand.

Following the terms of the promissory note, Robinson made thirty-five monthly interest payments between June, 1993, and May, 1996. The principal was due in a balloon payment on May 26, 1996, which Robinson failed to make. OSP demanded the full amount of the principal plus a penalty of $23,269.16, for a total demand of $488,269.16, from Trailblazers. Trailblazers brought the instant interpleader action against Robinson and OSP.

With respect to the OSP loan, Robinson brought cross-claims of breach of fiduciary duty, negligence, conversion, fraud, and breach of contract against OSP and Ciarcia. With respect to the Sears loan, Robinson

179 F.3d 661
brought cross-claims of breach of trust, quasi contract, legal malpractice, negligent misrepresentation, and deceit against Ciarcia. Robinson also alleged that the Arnolds and Conlon were jointly and severally liable for OSP's and Ciarcia's breaches of contract and liable under agency law principles for OSP's and Ciarcia's potential liabilities to Robinson. Robinson filed his claims on August 8, 1996, more than three years after the loans closed. OSP cross-claimed against Robinson for payment on the promissory note

The district court granted summary judgment to OSP on its contract claim, awarding $517,734.02 for late fees, prejudgment interest, and principal, and awarded attorneys' fees to OSP under a provision in the promissory note. The court granted summary judgment to Appellees on the claims arising from the OSP loan and summary judgment to Ciarcia on the claims arising from the Sears loan, holding all of these claims barred by both the Connecticut and the Oregon statutes of limitation. Robinson moved for reconsideration of summary judgment. The district court denied the motion.

III

Standard of Review

This court reviews the district court's grant of summary judgment de novo. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998). Viewing the evidence in the light most favorable to Robinson, we must determine whether any genuine issues of material fact remain and whether the district court correctly applied the relevant substantive law. See id.

We review a district court's refusal to grant a motion for reconsideration of summary judgment under Federal Rule of Civil Procedure 59(e) for an abuse of discretion. Bellus v. United States, 125 F.3d 821, 822 (9th Cir.1997). We review the district court's award of attorneys' fees made pursuant to state law for an abuse of discretion. St. Paul Fire & Marine Ins. Co. v. F.H., 117 F.3d 435, 439 (9th Cir. 1997), overruled on other gnds., Government Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1227 (9th Cir.1998) (en banc).

IV

Summary Judgment on Robinson's Cross-Claims

Connecticut and Oregon law provide materially different results when the statutes of limitation are applied to Robinson's cross-claims against Appellees. In order to review the district court's summary judgment on statute of limitation grounds, we first must decide what law supplies the statute of limitation for these claims. We hold that Connecticut law applies, and that under Connecticut law the district court correctly held that Robinson's claims were time-barred.1

A

Which State's Law Applies

When a federal court sitting in diversity hears state law claims, the conflicts laws of the forum state are used to determine which state's substantive law applies. Alaska Airlines, Inc. v. United Airlines, Inc., 902 F.2d 1400, 1402 (9th Cir.1990) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). Under Oregon law, the statute of limitation is provided by the state which supplies the substantive law. Or.Rev.Stat. § 12.430(1)(b) (1997).

179 F.3d 662

Oregon courts follow the Restatement (Second) of Conflict of Laws § 145 (1971) approach to determining the appropriate substantive law. Casey v. Manson Constr. & Eng'g Co., 247 Or. 274, 428 P.2d 898, 900 (1967) (adopting the approach in the tentative draft to the Restatement, which later became § 145). The Restatement focuses on the place where the injury occurred, the place where the conduct occurred, the domicil, nationality, place of incorporation and place of business of the parties, and the place where the relationship between the parties is centered. Id. Comparable factors are applied when an Oregon court considers the appropriate law for a claim of misrepresentation. Western Energy, Inc. v. Georgia-Pacific Corp., 55 Or.App. 138, 637 P.2d 223, 228-29 (1981) (citing the Restatement § 148).

In the instant case, the alleged tortious conduct occurred in Connecticut. Most of the Appellees...

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1112 practice notes
  • Union Pacific R.R. Co. v. Coast Packing Co., No. CIV-01-01326-GHK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • January 29, 2002
    ...judgment as a motion to amend the pleadings. See, e.g., Kaplan v. Rose, 49 F.3d 1363 (1994), 389 Orange Street Partners v. Ciarcia, 179 F.3d 656, 665-66 (9th Cir. 1999). We find amendment at this stage unwarranted due to possible bad faith, undue delay, prejudice to the opposing party, and ......
  • Ayon v. JPMorgan Chase Bank, N.A., CASE NO. CV F 12-0355 LJO SKO
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 9, 2012
    ...Rules of Civil Procedure." Marzan v. Bank of America, 779 F.Supp.2d 1140, 1149 (D. Haw. 2011) (citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 662 (9th Cir.1999)). Under the discovery rule, "the limitations period does not accrue until the aggrieved party has notice of the facts con......
  • Yamauchi v. Cotterman, No. C–14–1378 EMC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 24, 2015
    ...fraudulent concealment 84 F.Supp.3d 1019to toll the statute of limitations of a claim under state law. 389 Orange St. Partners v. Arnold, 179 F.3d 656, 662 (9th Cir.1999). Here, Yamauchi fails to satisfy Rule 9(b) in multiple respects. “Rule 9(b) does not allow a complaint to merely lump mu......
  • Rodela v. Guild Mortg. Co., CASE NO. CV F 11-2126 LJO BAM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 18, 2012
    ...of CivilPage 15Procedure." Marzan v. Bank of America, 779 F.Supp.2d 1140, 1149 (D. Haw. 2011) (citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 662 (9th Cir.1999)). Guild faults as inadequate the complaint's allegation that Ms. Rodela was "duly diligent in ascertaining these violatio......
  • Request a trial to view additional results
1112 cases
  • Union Pacific R.R. Co. v. Coast Packing Co., No. CIV-01-01326-GHK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • January 29, 2002
    ...judgment as a motion to amend the pleadings. See, e.g., Kaplan v. Rose, 49 F.3d 1363 (1994), 389 Orange Street Partners v. Ciarcia, 179 F.3d 656, 665-66 (9th Cir. 1999). We find amendment at this stage unwarranted due to possible bad faith, undue delay, prejudice to the opposing party, and ......
  • Ayon v. JPMorgan Chase Bank, N.A., CASE NO. CV F 12-0355 LJO SKO
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 9, 2012
    ...Rules of Civil Procedure." Marzan v. Bank of America, 779 F.Supp.2d 1140, 1149 (D. Haw. 2011) (citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 662 (9th Cir.1999)). Under the discovery rule, "the limitations period does not accrue until the aggrieved party has notice of the facts con......
  • Yamauchi v. Cotterman, No. C–14–1378 EMC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 24, 2015
    ...fraudulent concealment 84 F.Supp.3d 1019to toll the statute of limitations of a claim under state law. 389 Orange St. Partners v. Arnold, 179 F.3d 656, 662 (9th Cir.1999). Here, Yamauchi fails to satisfy Rule 9(b) in multiple respects. “Rule 9(b) does not allow a complaint to merely lump mu......
  • Rodela v. Guild Mortg. Co., CASE NO. CV F 11-2126 LJO BAM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 18, 2012
    ...of CivilPage 15Procedure." Marzan v. Bank of America, 779 F.Supp.2d 1140, 1149 (D. Haw. 2011) (citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 662 (9th Cir.1999)). Guild faults as inadequate the complaint's allegation that Ms. Rodela was "duly diligent in ascertaining these violatio......
  • Request a trial to view additional results

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