                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 20 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

CARLOTTA BOWMAN,                                 No. 10-16387

              Plaintiff - Appellant,             D.C. No. 2:08-cv-01882-SRB

  v.
                                                 MEMORANDUM*
HONEYWELL INTERNATIONAL, INC.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                    Susan R. Bolton, District Judge, Presiding

                       Argued and Submitted June 14, 2011
                            San Francisco, California

Before: SCHROEDER and BEA, Circuit Judges, and ANELLO, District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Michael M. Anello, District Judge for the U.S. District
Court for Southern California, San Diego, sitting by designation.
      Petitioner Carlotta Bowman appeals the district court’s grant of summary

judgment to defendant Honeywell, Inc., on Bowman’s Arizona state law claims1

that 1) Honeywell negligently misrepresented the terms of an employment contract

to Bowman; and 2) Bowman relied on Honeywell’s promises of employment to her

detriment, and is thus entitled to reliance damage under a promissory estoppel

theory of liability. We have jurisdiction under 28 U.S.C. § 1291. We affirm.2

      Under Arizona law, the tort of negligent misrepresentation requires a

plaintiff to prove the defendant misrepresented present facts. See McAlister v.

Citibank, 829 P.2d 1253, 1261 (Ariz. Ct. App. 1992). A negligent

misrepresentation claim cannot be based upon a promise of future conduct. Id.

Here, even if Honeywell misrepresented to Bowman—prior to December 10,

2007—that Bowman would start work at Honeywell on December 10, 2007 if she

passed her background check, this purported misrepresentation would have dealt

with a promise to hire Honeywell in the future. No reasonable juror could find that

the promises made to Bowman dealt with anything other than her future



      1
         Bowman is an Arizona resident; Honeywell is a New Jersey corporation
with its principal place of business in New Jersey. Bowman filed suit in Arizona
state court; Honeywell removed to federal court pursuant to diversity jurisdiction.
      2
        Because the parties are familiar with the facts of the case, we will repeat
them here only to the extent necessary to explain our decision.

                                          2
employment. Thus, the district court correctly granted summary judgment to

Honeywell on Bowman’s negligent misrepresentation claim.3

      Arizona law prohibits an action based on the promissory estoppel theory of

liability if there is an express, written contract on the same subject matter. Chanay

v. Chittenden, 563 P.2d 287, 290 (Ariz. 1977). Here, any promises Honeywell

made to Bowman dealt with Bowman’s future employment with Honeywell.

However, there was an express contract—the employment offer letter—on the

subject matter of Bowman’s future employment. That contract explicitly stated

Bowman’s employment was subject to her passing a background investigation.

Bowman stated in her deposition that she signed the contract and read and

understood all its terms. No reasonable juror could find that there was not an

express contract on the subject of Bowman’s future employment. Thus, the district




      3
         The three negligent misrepresentation claims which Bowman brings for the
first time on appeal—1) that Honeywell negligently represented that Bowman was
“qualified and ready to work”; 2) that Honeywell falsely told Bowman the decision
not to hire her had been based on information provided by HireRight; and 3) that
Honeywell misrepresented Bowman’s right to dispute HireRight’s report—are
waived. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992). In
any event, there is no evidence in the record that any of these statements were
false—a required element for a negligent misrepresentation claim under Arizona
law. Further, the first statement—that Bowman was “qualified and ready to
work”—was conditioned on a future event: a (to be given) background check.

                                          3
court correctly granted summary judgment to Honeywell on Bowman’s promissory

estoppel claim.

      For the foregoing reasons, the judgment of the district court is AFFIRMED.




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