                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 14 2012

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




                            FOR THE NINTH CIRCUIT



EXPORT-IMPORT BANK OF THE                        No. 11-55272
UNITED STATES,
                                                 D.C. No. 2:09-cv-02930-CAS-E
              Plaintiff - Appellee,

  v.                                             MEMORANDUM *

UNITED CALIFORNIA DISCOUNT
CORP., DBA United California Factors,
DBA United California Trade Finance,
DBA United Nevada Trade International,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                        Argued and Submitted May 9, 2012
                              Pasadena, California

Before: WARDLAW, PAEZ, and RAWLINSON, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      United California Discount Corporation (UCDC) challenges the district

court’s decision to grant summary judgment in favor of Appellee Export-Import

Bank of the United States (Ex-Im).

      Federal common law applies to this action because the United States is a

party as a result of a federal insurance program. See Seattle Fur Exch., Inc. v.

Foreign Credit Ins. Ass’n, 7 F.3d 158, 161 (9th Cir. 1993); see also Nat.’l Audubon

Soc. v. Dep’t of Water, 869 F.2d 1196, 1203 (9th Cir. 1989), as amended.1

      Ex-Im has standing to bring this action against UCDC because UPS assigned

Ex-Im its right to bring this action and this cause of action was assignable. See Bd.

of Trade of S.F. v. Swiss Credit Bank, 728 F.2d 1241, 1242-43 (9th Cir. 1984).

      Ex-Im’s claims against UCDC are not time-barred because Ex-Im filed its

complaint before the applicable federal six-year statute of limitations pursuant to

28 U.S.C. § 2415(a), and UPS assigned the claims to Ex-Im before the applicable

one-year state statute of limitations. See United States v. Thornburg, 82 F.3d 886,

890 (9th Cir. 1996).

      The district court correctly held that as a matter of law, Ashford’s failure to

perform was not a condition precedent to UCDC’s obligation to pay under the


      1
       However, we note that the application of California law would yield the
same result. See San Diego Gas & Elec. Co. v. Bank Leumi, 42 Cal. App. 4th 928,
934 (1996); see also Cal. Com. Code § 5108(a).

                                          2
UCDC Letters of Credit (LOCs). See Andy Marine, Inc. v. Zidell Inc., 812 F.2d

534, 537 (9th Cir. 1987), as amended; see also Warner Bros. Int’l Television

Distribution v. Golden Channels & Co., 522 F.3d 1060, 1062 (9th Cir. 2008) (“A

letter of credit creates an absolute, independent obligation and payment must be

made upon presentation of the proper documents regardless of any dispute between

the buyer and seller concerning their agreement. . . .”) (footnote reference and

internal quotation marks omitted). This is especially true in light of the

amendment that was made to the UCDC LOCs, changing the beneficiary

certification language from certifying that “the amount of our draft represents

funds due as a result of the failure of [Ashford] to perform as to the terms of the

[MOE Contract],” which explicitly addresses failure to perform, to certifying that

“the amount of our draft represents funds due as a result of drawing of our letter of

credit [the UPS LOCs] by order of [Ashford] under the terms of the [MOE

Contract],” which does not explicitly address failure to perform. See Andy Marine,

812 F.2d at 537 (requiring explicit articulation of a condition precedent).

      The district court correctly found that UCDC failed to present any evidence

that UPS engaged in fraud. See, e.g., id. at 536 (explaining that the issuer of an

LOC must honor it unless the documents are forged or fraudulent, or there is fraud

in the transaction). The fact that UPS presented the UCDC LOCs while there was


                                           3
ongoing litigation regarding Ashford’s performance under the underlying contract

did not constitute fraud. See id.

      AFFIRMED.




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