                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 9 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

FLAGSTONE DEVELOPMENT, LLC, an                  No.    18-35240
Arizona limited liability company;
LAWRENCE A. HEATH,                              D.C. No. 1:08-cv-00100-SEH

                Plaintiffs-Appellants,
                                                MEMORANDUM*
 v.

WAYNE JOYNER; JUSTIN JOYNER, as
individuals; ROCKY MOUNTAIN
TIMBERLANDS, LLC, a Montana
corporation,

                Defendants-Appellees.


FLAGSTONE DEVELOPMENT, LLC, an                  No.    18-35246
Arizona limited liability company;
LAWRENCE A. HEATH,
                                                D.C. No. 1:08-cv-00100-SEH
                Plaintiffs-Appellees,

 v.

WAYNE JOYNER; JUSTIN JOYNER, as
individuals,

                Defendants,

and

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
ROCKY MOUNTAIN TIMBERLANDS,
LLC, a Montana corporation,

                Defendant-Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                    Sam E. Haddon, District Judge, Presiding

                     Argued and Submitted November 7, 2019
                              Seattle, Washington

Before: GOULD and NGUYEN, Circuit Judges, and PRESNELL,** District
Judge.

      Flagstone Development, LLC and Lawrence A. Heath (collectively,

“Flagstone”) appeal from the district court’s dismissal of Flagstone’s tort claims,

exclusion of Flagstone’s expert witnesses, and grant of summary judgment in favor

of Rocky Mountain Timberlands, LLC (“RMT”). RMT conditionally cross-

appeals from the district court’s denial of its motion for a new trial. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm in part and dismiss in part.

      1. Flagstone waived its right to appeal the dismissal of its tort claims by

failing to do so when the case was first appealed to this court, 545 F. App’x 602

(9th Cir. 2013) (“Flagstone I”). Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.




      **
            The Honorable Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.

                                          2
1999) (“[O]n appeal, arguments not raised by a party in its opening brief are

deemed waived.”). The tort claims were at issue in Flagstone I because the district

court had entered final judgment for RMT and the Joyners. Moreover, we

expressly remanded only “on the issue of breach of contract.”

      2. The district court did not abuse its discretion by excluding the testimony

of Sheryl Sacry and James Foley. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141–

42 (1997). The district court properly excluded Sacry’s testimony under Federal

Rule of Evidence 702 because, like Dale Grabois’ excluded testimony in Flagstone

I, it was based on data with undisclosed methods and unknown reliability, and

Sacry offered no independent basis for her calculations. The district court also

properly excluded Foley’s testimony pursuant to Rule 702. His report was based

on materials—provided in large part by Heath—with undisclosed methods and

principles. Further, his report addressed only project feasibility and thus was not

relevant to the calculation of lost profits.

      3. The district court did not err by granting summary judgment in favor of

RMT. See Rearden LLC v. Rearden Commerce, Inc., 683 F.3d 1190, 1202 (9th

Cir. 2012). Of the eighteen documents that Flagstone offered as evidence of lost

profits, only two—Flagstone’s Investment Prospectus and RMT’s cash flow

analysis—are relevant to the calculation of lost profits. Even if the two documents




                                               3
were reliable,1 they are not self-explanatory; no reasonable jury could rely on the

documents, which use technical and specialized terminology, to make a reasonable

calculation of lost profits without an expert to guide it. See West v. State Farm

Fire & Cas. Co., 868 F.2d 348, 351 (9th Cir. 1989) (citing McKenzie v. Lamb, 738

F.2d 1005, 1008 (9th Cir. 1984)) (“[S]ummary judgment is proper if no reasonable

jury could differ.”).

      4. In light of our disposition of Flagstone’s appeal, RMT’s cross-appeal is

moot. We therefore dismiss it.

      The orders and judgment of the district court are AFFIRMED. RMT’s

cross-appeal is DISMISSED as moot.




      1
         They are largely speculative. In Flagstone I, for example, we affirmed the
district court’s exclusion of Grabois, whose testimony relied on Flagstone’s
Investment Prospectus, on the ground that the Prospectus had been “created before
several costly development issues were uncovered.”

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