                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                             NOV 16 2009

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

DONALDSON BROS. READY MIX,                      No. 08-35912
INC., a Montana corporation; CHARLES
F. DONALDSON; CATHERINE L.                      D.C. No. 9:06-cv-00138-DWM
DONALDSON; THOMAS SIMPSON,

             Plaintiffs - Appellants,           MEMORANDUM *

       v.

PHENNEGER & MORGAN, INC., a
Washington corporation,

             Defendant-third-party-
             plaintiff - Appellee,

       v.

MCLUCAS AND ASSOCIATES, INC.;
GLENDA MCLUCAS,

             Third-party-defendant -
             Appellees.


                   Appeal from the United States District Court
                           for the District of Montana
                   Donald W. Molloy, District Judge, Presiding



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     Argued and Submitted November 5, 2009
                                Portland, Oregon

Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.

      Donaldson Bros. et al. (“Donaldson”) appeal from the district court’s order

granting Phenneger & Morgan, Inc.’s motion for summary judgment. We have

jurisdiction under 28 U.S.C. § 1291. Our review is de novo, Mendez v. County of

San Bernardino, 540 F.3d 1109, 1123 (9th Cir. 2008), and we affirm.

      The district court correctly concluded that Donaldson is not entitled to

equitable indemnification as a matter of law. Donaldson failed to raise a genuine

issue of material fact as to whether it was “free from any active negligence

contributing to the injury causing accident.” Fletcher v. City of Helena, 517 P.2d

365, 370 (Mont. 1973).

      Donaldson abandoned on appeal any claim it might have had for

indemnification based on breach of a contractual duty.

      The district court did not err by granting summary judgment on Donaldson’s

entire claim for indemnification. Although a district court may not grant summary

judgment on claims not addressed in the motion for summary judgment, Greene v.




                                         2
Solano County Jail, 513 F.3d 982, 990 (9th Cir. 2008), the motion need not address

all factual allegations potentially relevant to the claim.

      AFFIRMED.




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