435 F.3d 989 (9th Cir. 2006), 04-15171, Wasco Products, Inc. v. Southwall Technologies, Inc.

Docket Nº:04-15171.
Citation:435 F.3d 989
Party Name:WASCO PRODUCTS, INC., Plaintiff-Appellant, v. SOUTHWALL TECHNOLOGIES, INC.; Bostik, Inc., Defendants-Appellees.
Case Date:January 13, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 989

435 F.3d 989 (9th Cir. 2006)

WASCO PRODUCTS, INC., Plaintiff-Appellant,

v.

SOUTHWALL TECHNOLOGIES, INC.; Bostik, Inc., Defendants-Appellees.

No. 04-15171.

United States Court of Appeals, Ninth Circuit.

January 13, 2006.

Argued and Submitted Oct. 18, 2005.

T. Scott Tate, Law Offices of T. Scott Tate, San Francisco, California, for plaintiff-appellant Wasco Products, Inc.

Mark S. Freeman, Choate, Hall & Stewart, Boston, Massachusetts, for defendant-appellee Southwall Technologies, Inc.

David R. Scheidemantle, Proskauer Rose LLP, Los Angeles, California, for defendant-appellee Bostik, Inc.

Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding, D.C. No. CV-02-02926-SBA.

Before: J. Clifford Wallace, Stephen S. Trott, and Pamela Ann Rymer, Circuit Judges.

OPINION

WALLACE, Senior Circuit Judge.

Wasco Products, Inc. (Wasco) appeals from the summary judgment granted to the appellees. Wasco sought to toll the applicable statutes of limitations because of an alleged civil conspiracy. We decide

Page 990

here the narrow question of whether Wasco was required to plead a civil conspiracy in order to raise the issue. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.1

I.

This action arises out of a dispute over insulated glass units (IGUs). Both appellees, Bostik, Inc. (Bostik) and Southwall Technologies, Inc. (Southwall), were involved in the manufacture of "Heat Mirror" IGUs that Wasco purchased.

A Heat Mirror IGU consists of Southwall's "Heat Mirror Film" suspended between two panes of glass. The film is designed to block ultraviolet and infrared radiation, while allowing the transmission of visible light. Southwall manufactured the film and provided manufacturers with guidelines for constructing Heat Mirror IGUs using the film. Bostik manufactured three types of sealants that were used to seal the Heat Mirror IGUs.

Wasco manufactures and assembles skylight systems. Wasco purchased Heat Mirror IGUs from third party manufacturers and incorporated them into its skylights. The Heat Mirror IGUs in dispute contained Southwall's film and Bostik's sealants. Wasco alleges it experienced an elevated failure rate in these Heat Mirror IGUs beginning in 1995.

Wasco has alleged that both Southwall and Bostik knew that Heat Mirror IGUs would be no more durable than normal IGUs and that many would fail prematurely. Despite this knowledge, Wasco alleges that Southwall and Bostik represented to the public and Wasco that their Heat Mirror IGUs were more durable than standard IGUs and would not experience elevated failure rates.

In its opposition to summary judgment, Wasco alleged for the first time that Bostik and Southwall were engaged in a civil conspiracy to misrepresent the quality of the Heat Mirror IGUs in an...

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