                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 02 2012

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




                            FOR THE NINTH CIRCUIT



LONDEN LAND COMPANY, LLC, an                     No. 10-16917
Arizona limited liability corporation,
                                                 D.C. No. 2:09-cv-00980-MHB
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

TITLE RESOURCES GUARANTY
COMPANY, a Texas corporation and
DOES 1-10, INCLUSIVE,

              Defendants - Appellees.



LONDEN LAND COMPANY, LLC, an                     No. 11-15391
Arizona limited liability corporation,
                                                 D.C. No. 2:09-cv-00980-MHB
              Plaintiff - Appellant,

  v.

TITLE RESOURCES GUARANTY
COMPANY, a Texas corporation and
DOES 1-10, INCLUSIVE,

              Defendants - Appellees.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Appeal from the United States District Court
                            for the District of Arizona
                  Michelle H. Burns, Magistrate Judge, Presiding

                      Argued and Submitted January 12, 2012
                            San Francisco, California

Before: WALLACE and M. SMITH, Circuit Judges, and RAKOFF, Senior District
Judge.**

      Londen Land Company, LLC (Londen) appeals from the district court’s

summary judgment in favor of Title Resources Guarantee Company (TRGC) and

denial of Londen’s motion for relief from judgment. We review the summary

judgment de novo, Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 853 (9th Cir. 1995), and

the denial of the motion for relief from judgment for an abuse of discretion,

Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th Cir.

1987). We affirm.

      The district court correctly held that Londen’s title insurance terminated

because Londen did not retain “an estate or interest in the land,” as the term is used

in Londen’s policy. See Employers Mut. Cas. Co. v. DGG & CAR, Inc., 183 P.3d

513, 515 (Ariz. 2008) (interpretation of an insurance contract is a question of law).

Schedule A of the policy provides that “[t]he estate or interest in the land described



       **
             The Honorable Jed S. Rakoff, Senior District Judge for the Southern
District of New York, sitting by designation.

                                           2
or referred to in this Schedule covered by this Policy is: FEE SIMPLE.” When

Londen conveyed the land to its wholly owned limited liability company, Florence

Ventures, LLC (Florence), in fee simple, Londen’s policy terminated because

Londen conveyed the entirety of its estate or interest. See In re Forsstrom, 38 P.2d

878, 888 (Ariz. 1934) (fee simple is the largest estate in land possible), overruled

in part on other grounds by State ex rel. Morrison v. Thelberg, 350 P.2d 988

(Ariz. 1960), and Mohave County v. Chamberlin, 281 P.2d 128 (Ariz. 1955); Ariz.

Rev. Stat. § 29-732A (“An interest in a limited liability company is personal

property . . . ” ); Turner v. City of Flagstaff, 247 P.3d 1011, 1014 (Ariz. Ct. App.

2011) (sole shareholder of a limited liability company does not own land that is

owned by the company). Londen did not raise a genuine issue of fact under the

“reasonable expectations” doctrine because the evidence submitted does not show

that TRGC had reason to believe that Londen would not have assented to the

policy if Londen had known of the continuation of coverage provision. See

Darner Motor Sales, Inc. v. Universal Underwriters Ins. Co., 682 P.2d 388, 396

(Ariz. 1984).

      Londen also failed to raise a genuine issue of fact as to whether there was a

non-written agreement between Londen and Florence that amounted to a general

warranty deed, which would have allowed coverage to continue under the policy.


                                           3
Londen’s supporting declaration is conclusory, and the clear language of the

Special Warranty Deed does not support a conclusion that there was an agreement

that the property was actually conveyed with a general warranty. See Hansen v.

United States, 7 F.3d 137, 138 (9th Cir. 1993) (conclusory allegations unsupported

by factual data are not sufficient to avoid summary judgment); Donahoe v.

Marston, 547 P.2d 39, 41 (Ariz. Ct. App. 1976) (“The intent of the grantor is to be

ascertained from the language of the deed[] construed in connection with the

circumstances existing at the time”).

      Londen’s argument that the district court erred by not ordering Florence to

be substituted as the real party in interest lacks merit. The requirements of Federal

Rule of Civil Procedure 17(a)(3) were never triggered because the district court

entered summary judgment on the merits.

      The district court did not abuse its discretion in denying Londen relief from

judgment under Federal Rule of Civil Procedure 60(b)(2). There is no evidence

that Paul McNutt, Jr., formed an opinion regarding interpretation of the policy at

any time before summary judgment was entered, and the earlier production of his

statements would not likely have changed the disposition of the motion for

summary judgment. See Jones v. Aero/Chem Corp., 921 F.2d 875, 878 (9th Cir.

1990) (relief under Rule 60(b)(2) requires that “the evidence (1) existed at the time


                                          4
of the trial, (2) could not have been discovered through due diligence, and (3) was

of such magnitude that production of it earlier would have been likely to change

the disposition of the case”) (internal quotation marks omitted).

      TRGC shall file an amended notice of removal with the district court that

corrects the defects in its jurisdictional allegations no later than 14 days from the

date of the mandate. See Snell v. Cleveland, Inc., 316 F.3d 822, 828 (9th Cir.

2002) (“Under 28 U.S.C § 1653, we have the authority to grant leave to amend a

complaint in order to cure defective allegations of jurisdiction”).

AFFIRMED




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