                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 07 2011

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




                            FOR THE NINTH CIRCUIT



RIVERSTONE CENTER WEST LLC;                      No. 10-35668
RIVERSTONE CENTER EAST LLC;
RIVERSTONE CENTER LLC,                           D.C. No. 2:08-cv-00395-EFS
Washington limited liability companies,

              Plaintiffs - Appellants,           MEMORANDUM *

  v.

BARNES & NOBLE BOOKSELLERS
INC.; BARNES & NOBLE INC.,
Delaware corporations,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Edward F. Shea, District Judge, Presiding

                        Argued and Submitted May 6, 2011
                               Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

       Riverstone Center West, LLC (“Riverstone”) and its related companies

appeal the district court’s order granting summary judgment in favor of Barnes &


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Noble Booksellers, Inc., in a dispute concerning a commercial lease between

Riverstone as lessor and Barnes & Noble as lessee. The lease was for a space in a

shopping center in Coeur d’Alene, Idaho to be developed by Riverstone. The

dispute concerns whether Barnes & Noble breached the provisions of the lease

when it terminated the lease on the ground that Riverstone had not fulfilled the co-

tenancy requirements. The facts are not disputed. The “co-tenancy requirements”

provision of the contract lists three separate categories of tenants, one being for

restaurant tenants. When the time for delivery came, at least one of the restaurants

had not been built, and this was a principal reason given for the termination.

      Riverstone sued, arguing the term “Inducement Tenants,” as used in the

lease, was ambiguous and could be read as excluding the restaurants. The district

court agreed with Barnes & Noble that the contract was unambiguous and that

“Inducement Tenants” included the restaurant category.

      Riverstone’s principal argument is that applying strict grammatical rules to

the paragraph in question, the description of “Inducement Tenants” does not

include the restaurant category. It therefore concludes the contract is ambiguous.

The meaning conveyed by the paragraph in question, read as a whole and in the

written content of the agreement, however, is that all three categories are, as the

provision characterizes them, “collectively, the ‘Inducement Tenants.’”


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      Riverstone also contends that the lease is ambiguous as to the meaning of

“state of construction comparable to that of the completed Shell of the Premises.”

However, the lease defines that state of construction required for the Shell in a

detailed exhibit to the lease. Without question, the restaurant did not meet the

requirements listed in that exhibit.

      One of the conditions for delivery of the building is satisfaction of the

“requirements . . . relative to Inducement Tenants for Tenant’s acceptance of the

Premises.” Pursuant to a related provision of the lease, Barnes & Noble was

authorized to terminate the lease if the delivery conditions were not satisfied by the

agreed upon date. Because the delivery requirement for Inducement Tenants was

not satisfied, Barnes & Noble had the right to terminate and did not breach the

terms of the lease. The district court properly so held.

      Riverstone has waived its challenges to the district court’s disposition of its

remaining claims. See, e.g., Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d

983, 994-95 (9th Cir. 2009) (“We will not ordinarily consider matters on appeal

that are not specifically and distinctly argued in appellant’s opening brief.”)

(internal quotation marks omitted).

      AFFIRMED.




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