                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 21 2010

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



                           FOR THE NINTH CIRCUIT


INSITU INC,                                      No. 09-35737

              Plaintiff-counter-defendant -      D.C. No. 2:08-cv-03067-EFS
Appellee,

  v.                                             MEMORANDUM*

MARK KENT,

              Defendant-counter-claimant -
Appellant.


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

                       Argued and Submitted July 15, 2010
                              Seattle, Washington

Before: RYMER and N.R. SMITH, Circuit Judges, and CEBULL, Chief District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Richard F. Cebull, United States District Judge for the
District of Montana, sitting by designation.
      Mark Kent appeals the summary judgment for Insitu, Inc. on his claims of

fraudulent misrepresentation and promissory estoppel. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

      Kent’s case, and this appeal, turn on whether there is a triable issue of fact

that he reasonably relied on misrepresentations that Insitu concedes, for purposes

of the summary judgment, were made. As the district court concluded, he could

not show reasonable reliance – an element of each cause of action, Sigman v.

Stevens-Norton, Inc., 425 P.2d 891, 920 (Wash. 1967) (fraudulent

misrepresentation); Jones v. Best, 950 P.2d 1, 5 (Wash. 1998) (promissory

estoppel) – given the “no-reliance” clause in the Separation and Release

Agreement, and that he was a sophisticated businessman, was represented by

counsel, had an adversarial relationship with the company, and was allowed

twenty-one days to consider whether to sign the Agreement as well as a week

thereafter to revoke his acceptance. See Kwiatkowski v. Drews, 176 P.3d 510, 517

(Wash. Ct. App. 2008); Stewart v. Estate of Steiner, 93 P.3d 919, 927 (Wash. Ct.

App. 2004); cf. Helenius v. Chelius, 120 P.3d 954, 964 (Wash. Ct. App. 2005).

      We decline Kent’s invitation for certification to the Washington Supreme

Court. Making such a request for the first time on appeal is disfavored, Thompson

v. Paul, 547 F.3d 1055, 1065 (9th Cir. 2008), and in any event, we are sufficiently


                                         -2-
guided by decisions of the Washington appellate courts. See Ryman v. Sears,

Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007).

      AFFIRMED.




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