                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 17 2009

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




                            FOR THE NINTH CIRCUIT



BENJAMIN D. WINIG, on Behalf of                  No. 08-17073
Himself and All Others Similarly Situated,
                                                 D.C. No. 3:06-cv-04297-MMC
             Plaintiff - Appellant,

  v.                                             MEMORANDUM *

CINGULAR WIRELESS, LLC; et al.,

             Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Northern District of California
                   Maxine M. Chesney, District Judge, Presiding

                     Argued and Submitted November 6, 2009
                            San Francisco, California

Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.

       Plaintiff Benjamin D. Winig appeals from a district court order granting

summary judgment in favor of Defendants Cingular Wireless, LLC; AT&T

Mobility, LLC; and AT&T Mobility Corporation. We review the district court’s

grant of summary judgment de novo and will reverse if we determine that there is a


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
genuine issue of material fact for trial. See W. States Med. Ctr. v. Shalala, 238

F.3d 1090, 1093 (9th Cir. 2001).

      Winig argues primarily that Defendants breached their contract with him by

failing to treat his calls to check his voicemail as “mobile-to-mobile” calls. In

relevant part, the contract provides that mobile-to-mobile calls are “[c]alls to and

from other local Cingular customers” and that mobile-to-mobile minutes “may be

used when directly dialing or receiving calls from any other Cingular phone

number.” It further provides that voicemail calls constitute “airtime” or

“Chargeable Time.”

      The district court correctly granted summary judgment to Defendants on

Winig’s breach of contract claim. It is clear that voicemail calls constitute

“airtime” and may, as a general matter, be billed to subscribers. It is further clear

that voicemail calls do not fall under the definition of mobile-to-mobile calls,

notwithstanding the existence of a behind-the-scenes technical process that routes

voicemail calls through a Cingular “pilot number.” Reading the contract as a

whole, with each provision helping to interpret the others, and giving words their

ordinary meaning, see Cal. Civ. Code §§ 1641, 1644, we find that the contract’s

two treatments of “mobile-to-mobile” are easily harmonized. The natural reading

of these provisions is that mobile-to-mobile minutes apply to calls from one


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Cingular customer’s mobile telephone to another Cingular customer’s mobile

telephone. The contract is not reasonably susceptible to Winig’s proposed

interpretation that mobile-to-mobile calls include calls that are to another Cingular

number only because of the technical routing of the calls through a pilot number.

See Northrop Grumman Corp. v. Factory Mut. Ins. Co., 563 F.3d 777, 783 (9th

Cir. 2009); Cedars-Sinai Med. Ctr. v. Shewry, 41 Cal. Rptr. 3d 48, 60 (Ct. App.

2006).

         The remainder of Winig’s claims are premised on the same proposed

interpretation of the contract that we have just rejected. The district court properly

granted summary judgment on these claims.

         Winig’s remaining arguments for reversal also fail. The district court

properly granted summary judgment on Winig’s Second Amended Complaint, as it

was substantively identical to his First Amended Complaint. The district court also

properly granted summary judgment as to Defendants AT&T Mobility, LLC and

AT&T Mobility Corporation. Winig’s claims against these parties were identical

to his claims against Cingular, and Winig had a full and fair opportunity to present

his claims. See Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d

800, 803 (9th Cir. 1995).

         AFFIRMED.


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