                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 11 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



M-CUBED LLC, a Washington limited                No. 08-35194
liability company; JOHN T. SESSIONS
HISTORIC AIRCRAFT FOUNDATION,                    D.C. No. 2:06-cv-01403-MJP

             Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

MAERSK LINE LTD, a Delaware
corporation,

             Defendant,

 and

MAERSK INC, a New Your corporation;
AP MOLLER-MAERSK A/S, a Danish
Company,

             Defendants - Appellees.



                   Appeal from the United States District Court
                     for the Western District of Washington
                   Marsha J. Pechman, District Judge, Presiding

                       Argued and Submitted August 6, 2009
                               Seattle, Washington


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PREGERSON and BEA, Circuit Judges, and MAHAN, ** District Judge.

      M-Cubed LLC (“M-Cubed”) interlocutorily appeals the district court’s

partial grant of summary judgment in favor of Maersk Line Ltd. (“Maersk”). The

parties are familiar with the facts of this case, which we repeat here only to the

extent necessary to explain our decision.

I. Jurisdiction

      “[D]istrict courts shall have original jurisdiction, exclusive of the courts of

the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to

suitors in all cases all other remedies to which they are otherwise entitled.” 28

U.S.C. § 1333(1). The “savings to suitors” clause “permits the plaintiff to bring an

action ‘at law’ in the federal district court, provided the requirements of diversity

of citizenship and amount in controversy are met.” Ghotra v. Bandila Shipping,

Inc., 113 F.3d 1050, 1054 (9th Cir. 1997). “If a claim for relief is within the

admiralty or maritime jurisdiction and also within the court’s subject-matter

jurisdiction on some other ground, the pleading may designate the claim as an

admiralty or maritime claim . . . .” Fed. R. Civ. P. 9(h)(1). “If [Plaintiff] wants the

admiralty rules to apply, the plaintiff or other party asserting a claim needs to

include a statement in the pleadings substantially like the following: ‘This is an



       **
             The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
admiralty or maritime claim within the meaning of Rule 9(h).’” 1 Steven F.

Friedell, Benedict on Admiralty § 133 at 8-67 (7th ed., rev. 2009). “If a claim

arises within the admiralty jurisdiction and some other basis of federal jurisdiction

and the plaintiff . . . does not want the admiralty procedures to be applied (for

example if it wants to have a jury trial), then the Rules of Civil Procedure do not

require the plaintiff . . . to state anything further.” Id. § 133, at 8-68 (parenthetical

in original).

       In the case before us, M-Cubed did not designate its claim as an admiralty

claim. Furthermore, M-Cubed’s complaint made a jury demand, which would not

be available in admiralty. See Fed. R. Civ. P. 38(e). M-Cubed’s jurisdictional

statement also clearly referenced the diversity and amount in controversy

requirements of a case brought at law. The district court granted certification

under 28 U.S.C. § 1292(b). Because we agree that resolution of this appeal would

materially advance the ultimate termination of litigation, we exercise our discretion

to permit this appeal. See 28 U.S.C. § 1292(b).

II. Analysis

       As a preliminary matter, we conclude that the district court erred in barring

the parties from filing reply briefs. We review a district court’s compliance with

local rules for an abuse of discretion. Bias v. Moynihan, 508 F.3d 1212, 1223 (9th

Cir. 2007). Under Western District of Washington Local Civil Rule 7(b)(3), “[t]he
moving party may, within the time prescribed in [Local Civil Rule] 7(d), file . . . a

reply brief in support of the motion, together with any supporting material

described in subsection (1).” Here, however, the district court forbade the parties

to file reply briefs and materials at any time, stating “I don’t use them. I’m not

going to read them.” [ER 19]. The district court abused its discretion, and should

have considered the reply materials.

      Proceeding to the merits of this appeal, we review de novo a district court’s

decision to grant summary judgment. Universal Health Servs., Inc. v. Thompson,

363 F.3d 1013, 1019 (9th Cir. 2004). Viewing the evidence in the light most

favorable to the nonmoving party, we must determine if there are any genuine

issues of material fact and whether the district court properly applied the law. Id.

We conclude that there are triable issues of material fact. Specifically, a

reasonable factfinder could conclude that Maersk intended to abandon the cargo to

Hong Kong authorities, and therefore deviated from the contract of carriage. Prior

to the cargo’s arrival in Hong Kong, Maersk employees stated that the cargo “will

be seized,” and “knew that this sort of thing was something called strategic

commodity - a license was required.” Maersk employees also described the cargo

to Hong Kong officials as a “military aircraft.” Considering this evidence, a

reasonable factfinder could find that Maersk was substantially certain that the MIG


                                           4
was a strategic good subject to forfeiture. See Vision Air Flight Serv., Inc. v. M/V

National Pride, 155 F.3d 1165, 1176 (9th Cir. 1998).

      Accordingly, we REVERSE the district court’s grant of summary judgment

and REMAND for trial.




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