                                                                               FILED
                           NOT FOR PUBLICATION                                 FEB 18 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


INSURANCE COMPANY OF THE                         No. 12-17383
STATE OF PENNSYLVANIA,
                                                 D.C. No. 2:11-cv-02033-PMP-RJJ
              Plaintiff - Appellee,

  v.                                             MEMORANDUM*

NATIONAL FIRE & MARINE
INSURANCE COMPANY,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                  Philip M. Pro, Senior District Judge, Presiding

                      Argued and Submitted February 4, 2015
                            San Francisco, California

Before: TALLMAN and RAWLINSON, Circuit Judges, and MURPHY, District
Judge.**

       National Fire & Marine Insurance Company (National Fire) appeals the

district court’s grant of partial summary judgment in favor of The Insurance

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
Company of the State of Pennsylvania (Insurance Company). National Fire also

appeals the district court’s denial of its motion for a continuance pursuant to Rule

56 of the Federal Rules of Civil Procedure, and its motion for reconsideration.



      1.     The district court did not err in granting partial summary judgment in

favor of Insurance Company because National Fire failed to raise “genuine issues

of material fact” regarding the triggering of excess coverage. As the district court

noted, National Fire submitted no evidence to refute the expert reports submitted in

support of the motion for partial summary judgment. Nat’l Ass’n for the

Advancement of Multijurisdiction Practice v. Berch, 773 F.3d 1037, 1044 (9th Cir.

2014). The district court’s ruling was neither premature nor advisory because it

did not rule on National Fire’s actual indemnity obligation.



      2.     The district court did not abuse its discretion in denying National

Fire’s motion under Rule 56. National Fire’s failure to conduct discovery

established its lack of diligence. See Burlington N. Santa Fe R.R. Co. v.

Assiniboine & Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767, 773-74

(9th Cir. 2003).




                                          2
      3.     Because the district court did not err when it granted partial summary

judgment in favor of Insurance Company, and did not abuse its discretion when it

denied National Fire’s motion under Rule 56(d), it acted within its discretion when

it denied National Fire’s motion for reconsideration of those issues.1 See United

States v. Chi Tong Kuok, 671 F.3d 931, 947 n.9 (9th Cir. 2012).



      4.     We decline Insurance Company’s request that we certify to the

Nevada Supreme Court the question of how the “cause” test is properly applied in

construction defect cases. This appeal does not “present[] issues of Nevada state

law that will be determinative of an issue essential to the parties’ dispute. . . .”

Bullion Monarch Min., Inc. v. Barrick Goldstrike Mines, Inc., 686 F.3d 1041, 1044

(9th Cir. 2012); see also Nev. R. App. P. 5. Indeed, the district court expressly

noted that it was making no ruling on the dispositive issue in the case.

      AFFIRMED.




      1
         National Fire also asked the district court to reconsider its order granting
Insurance Company’s Motion for Voluntary Dismissal of Count Three Without
Prejudice. On reconsideration, the district court vacated its order and provided
National Fire additional time to respond. The parties later stipulated to dismissal
of this count, and National Fire does not now appeal this issue.

                                            3
