                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 09 2010

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




                            FOR THE NINTH CIRCUIT



GCM AIR GROUP, LLC, a Nevada                     No. 09-15825
limited liability company,
                                                 D.C. No. 3:07-cv-00168-BES-
              Plaintiff - Appellant,             RAM

  v.
                                                 MEMORANDUM *
CHEVRON U.S.A., INC., a Pennsylvania
corporation,

              Defendant - Appellee.



GCM AIR GROUP, LLC, a Nevada                     No. 09-16412
limited liability company,
                                                 D.C. No. 3:07-cv-00168-BES-
              Plaintiff - Appellant,             RAM

  v.

CHEVRON U.S.A., INC., a Pennsylvania
corporation,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada

        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Brian E. Sandoval, District Judge, Presiding

                       Argued and Submitted June 17, 2010
                            San Francisco, California

Before: HAWKINS, FISHER, and TYMKOVICH,** Circuit Judges.

      GCM Air Group, LLC, filed various contract and tort claims against

Chevron U.S.A., Inc., regarding contamination and remediation on adjacent

properties located in Nevada. The district court exercised jurisdiction pursuant to

28 U.S.C. § 1332. GCM appeals the district court’s decisions granting Chevron

summary judgment, denying GCM’s request for reconsideration, rejecting GCM’s

motion to certify questions to the Nevada Supreme Court, and awarding Chevron

attorneys’ fees. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part,

reverse in part, and remand for further proceedings consistent with our disposition.

      Summary Judgment

      With one exception—the trespass claim relating to the adjacent restaurant

property—we hold that the district court did not err in granting Chevron summary

judgment on GCM’s claims.

      The record does not demonstrate the elements necessary for GCM to

succeed on its negligent misrepresentation, breach of contract, implied covenant of



      **
          The Honorable Timothy M. Tymkovich, Circuit Judge for the Tenth
Circuit, sitting by designation.
                                          2                                   09-15825
good faith and fair dealing, and interference with prospective economic advantage

claims. The evidence presented does not show Chevron provided GCM false

information or that Chevron had a pecuniary interest in the sale of the properties to

GCM. See Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1387 (Nev. 1998) (listing

the elements of a negligent misrepresentation claim). Nor did GCM adequately

develop a non-disclosure argument. See Schnelling v. Budd (In re Agribiotech,

Inc.), 291 F. Supp. 2d 1186, 1190S93 (D. Nev. 2003) (recognizing an omission

may form the basis of a negligent misrepresentation claim).

      The evidence set forth also fails to demonstrate Chevron breached its

agreements with GCM by not satisfying the Washoe County Health Department’s

remediation requirements. Similarly, the evidence provided does not demonstrate

Chevron deliberately delayed the remediation of the properties or that a special

element of reliance or fiduciary duty existed in GCM and Chevron’s relationship.

See Hilton Hotels Corp. v. Butch Lewis Prods., Inc., 808 P.2d 919, 922S23 (Nev.

1991) (discussing the elements of implied covenant of good faith and fair dealing

claims brought in contract and tort). Nor does the evidence show Chevron

intentionally interfered with GCM’s potential sale of the properties. See M & R

Inv. Co., Inc. v. Goldsberry, 707 P.2d 1143, 1144 (Nev. 1985) (“There can be no

doubt that proof of intentional interference is a sine qua non of the tort [of


                                           3                                     09-15825
interference with prospective economic advantage].” (emphasis in original)

(alteration omitted)).

      Because GCM’s negligence claim amounts to a claim Chevron failed to

remediate in accordance with the terms of the parties’ agreements, and because

GCM seeks relief for damages resulting from that alleged failure, the economic

loss doctrine bars the claim. See Terracon Consultants W., Inc. v. Mandalay

Resort Grp., 206 P.3d 81, 86 (Nev. 2009) (“The economic loss doctrine marks the

fundamental boundary between contract law, which is designed to enforce the

expectancy interests of the parties, and tort law, which imposes a duty of

reasonable care and thereby generally encourages citizens to avoid causing

physical harm to others.” (internal quotation marks and alterations omitted)); see

also Giles v. GMAC, 494 F.3d 865, 876 (9th Cir. 2007) (noting tort claims

amounting “to nothing more than a failure to perform a promise contained in a

contract” have been barred by the economic loss doctrine).

      Regarding GCM’s strict liability claim, because storing gasoline in

underground tanks beneath gas stations can be accomplished safely with

reasonable care, is commonplace, is of significant utility to the community, and is

appropriate in commercial and residential settings, and because nothing in the

record demonstrates otherwise, such storage is not an ultra-hazardous activity


                                          4                                   09-15825
subject to strict liability. See Valentine v. Pioneer Chlor Alkali Co., 864 P.2d 295,

297 (Nev. 1993) (providing the factors for determining whether an activity is ultra-

hazardous).

      Concerning GCM’s property damage claims relating to the leased station

property, the record demonstrates GCM knew of or reasonably could have learned

of sufficient facts supporting those claims when it acquired the properties in 2002.

See Petersen v. Bruen, 792 P.2d 18, 20 (Nev. 1990) (ruling the statutory period of

limitations is tolled “until the injured party discovers or reasonably should have

discovered facts supporting a cause of action”). Thus, the claims are barred by the

statute of limitations. See Nev. Rev. Stat. § 11.220 (providing tort claims

concerning property damage must be brought within four years of accrual). To the

extent GCM asserts on appeal property damage claims relating to the adjacent

restaurant property on appeal, those claims are barred because GCM did not

adequately present the argument below that it had additional, separate claims as to

the restaurant property. See F.T.C. v. Neovi, Inc., --- F.3d ---, No. 09-55093, 2010

WL 2365956, at *7 n. 7 (9th Cir. June 15, 2010) (stating issues not properly raised

in the district court are waived on appeal).

      As to GCM’s separate trespass claim (Claim 16), whether GCM discovered

or should have discovered facts supporting this claim before 2005 is a disputed


                                           5                                   09-15825
material fact. See Siragusa v. Brown, 971 P.2d 801, 812 (Nev. 1998) (holding the

time of accrual may be decided as a matter of law only where uncontroverted

evidence demonstrates the plaintiff discovered or should have discovered the

injurious conduct). As a result, it cannot be determined on this summary judgment

record that this claim is time-barred.

      Reconsideration

      Because GCM concedes its motion for reconsideration was filed outside of

Rule 59(e)’s 10-day window, see Am. Ironworks & Erectors, Inc. v. N. Am. Constr.

Corp., 248 F.3d 892, 898S99 (9th Cir. 2001) (providing a motion for

reconsideration is treated as a Rule 60(b) motion, unless it is filed within 10 days

of the entry of judgment), and the unique circumstances doctrine is inapplicable,

see Wiersma v. Bank of the West (In re Wiersma), 483 F.3d 933, 940 (9th Cir.

2007) (stating the doctrine applies only where a court has “explicitly misled” a

party), the district court properly treated the motion under Rule 60(b). Further,

because GCM’s motion merely restated the contentions it set forth in its opposition

to summary judgment, our above analysis concerning the district court’s summary

judgment decision applies equally here. See Fed. R. Civ. P. 60(b) (providing

grounds for relief).




                                           6                                    09-15825
      Certification

      The district court did not abuse its discretion by declining to certify several

issues to the Nevada Supreme Court. GCM failed to seek alteration or amendment

of the district court’s judgment on the claims relating to the issues it sought to

certify, see Nev. R. App. P. 5(a), and the district court properly determined it had

adequate guidance concerning how the Nevada Supreme Court would decide the

economic loss doctrine and ultra-hazardous liability issues.

      Attorneys’ Fees

      Because the district court will necessarily be required to reevaluate the

attorneys’ fees award given our disposition, we decline to consider GCM’s

contentions regarding that award at this juncture.

      AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings consistent with this disposition. Each party shall bear its own costs on

appeal.




                                           7                                      09-15825
