                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 21 2011

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




                            FOR THE NINTH CIRCUIT



EXXONMOBIL OIL CORPORATION,                      No. 10-55610

    Plaintiff-counter-defendant - Appellee,      D.C. No. 2:08-cv-07259-PSG-E

  v.
                                                 MEMORANDUM *
GASPROM, INC.,

   Defendant-counter-claimant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                     Argued and Submitted December 6, 2011
                              Pasadena, California

Before: PREGERSON and MURGUIA, Circuit Judges, and CONLON, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
      Gasprom, Inc. (“Gasprom”) appeals the district court’s judgment in favor of

ExxonMobil Oil Corporation (“ExxonMobil”). We have jurisdiction pursuant to

28 U.S.C. § 1291 and we affirm.1

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

on Gasprom’s purported counterclaim for breach of contract. Federal Rule of Civil

Procedure 8(a)(2) requires that each claim in a pleading be supported by “a short

and plain statement of the claim showing that the pleader is entitled to relief.” A

claim complies with Rule 8(a)(2) only when the claim is stated with sufficient

particularity to “‘give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.’” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512

(2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Under this rule, a

claim must contain “more than labels and conclusions” or a “formulaic recitation

of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007). Here, Gasprom failed to comply with Rule 8(a)(2) because it did

not give ExxonMobil sufficient notice that it was raising a breach of contract

counterclaim. The only reference to a breach of contract counterclaim in

Gasprom’s eighteen-page pleading is the following sentence in the introduction:



      1
        Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.

                                            2
“In the alternative, Gasprom claims breach of the settlement agreement by

ExxonMobil.” This single sentence, buried at the end of an introductory

paragraph, was insufficient to put ExxonMobil on notice.

      2. The district court’s factual findings are not clearly erroneous. See United

States v. 1.377 Acres of Land, 352 F.3d 1259, 1264 (9th Cir. 2003) (noting that a

district court’s findings of fact in a contract dispute are reviewed under the “clearly

erroneous” standard). The factual findings challenged by Gasprom are supported

by the testimony of ExxonMobil employees Ena Williams and David Watson.

Because the challenged factual findings are “plausible in light of the record viewed

in its entirety, . . . [we] cannot reverse . . . .” Marlyn Nutraceuticals, Inc. v. Mucos

Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009) (internal quotation marks

omitted).

      3. The district court correctly found that Gasprom breached the parties’

franchise and settlement agreements.2 The franchise agreement expressly

prohibited Gasprom from altering or improving the gas station property without

ExxonMobil’s “prior written consent.” The franchise agreement also prohibited

Gasprom from: (1) making “additions or alterations” to the leased equipment



      2
       Because the settlement agreement reinstated the franchise agreement, a
breach of the franchise agreement was also a breach of the settlement agreement.

                                            3
without “ExxonMobil’s prior written consent”; (2) permitting “anything prejudicial

to ExxonMobil’s title” to the leased equipment; or, (3) removing the leased

equipment or delivering the leased equipment to anyone but ExxonMobil or

ExxonMobil’s designee.

      4. The district court’s findings of fact, which were not clearly erroneous,

preclude Gasprom’s affirmative defense of equitable estoppel. Under California

law, the party asserting an equitable estoppel defense must show that the other

party was apprised of the true state of facts. See Granite State Ins. Co. v. Smart

Modular Technologies, Inc., 76 F.3d 1023, 1028 (9th Cir. 1996). The district

court’s factual finding that ExxonMobil was unaware of the true nature of

Gasprom’s renovation project at the time of issuing the memorandum of

preliminary review precludes Gasprom from prevailing on its affirmative defense

of equitable estoppel.

      5. The district court’s award of $3,700 in compensatory damages to

ExxonMobil is amply supported by the record. ExxonMobil engineer Andre Reed

testified that, after ExxonMobil learned there was a conflict between

ExxonMobil’s site plan and Gasprom’s site plan, ExxonMobil spent $3,700

surveying the Gasprom site so it could redesign its new Enhanced Vapor Recovery

system.


                                          4
      6. The district court did not abuse its discretion when it awarded

$297,991.90 in attorneys’ fees to ExxonMobil. See Kona Enter., Inc., v. Estate of

Bishop, 229 F.3d 877, 883 (9th Cir. 2000) (noting that a district court’s award of

attorneys’ fees under state law is reviewed for abuse of discretion). The district

court carefully considered the work done by ExxonMobil’s attorneys in obtaining

summary judgment on Gasprom’s counterclaims and ExxonMobil’s success on its

claims for breach of contract and injunctive relief.




AFFIRMED.




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