                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            MAY 25 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
FAULKNER USA, INC., a Delaware                   No. 14-15299
corporation and SAFECO INSURANCE
COMPANY OF AMERICA, a                            D.C. No. 3:11-cv-08086-NVW
Washington corporation,

              Plaintiffs - Appellants,           MEMORANDUM*

 v.

THE DURRANT GROUP, INC., a
Wisconsin corporation; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                        Argued and Submitted May 9, 2016
                            San Francisco, California

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

      Plaintiffs Faulkner USA, Inc. (“FUSA”) and Safeco Insurance Company of

America appeal (1) the district court’s grant of Strand Associates, Inc.’s Federal



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Rule of Civil Procedure 52(c) motion for judgment on partial findings, based on

the Plaintiffs’ failure to prove that Strand was professionally negligent in not

discovering and reporting to FUSA that the Mohave County Flood Control District

had jurisdiction over the jail’s off-site sewer line crossing; and (2) the district

court’s orders awarding attorneys’ fees and costs to The Durrant Group, Inc.

(“Durrant”), Strand Associates, Inc. (“Strand”), and PK Associates, LLC (“PK”).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court.

      1. In reviewing a Rule 52(c) judgment, we review the district court’s

findings of fact for clear error and conclusions of law de novo. See Zivkovic v. S.

Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002); Fed. R. Civ. P. 52(a)(6).

“The clear error standard also applies to the results of essentially factual inquiries

applying the law to the facts.” Zivkovic, 302 F.3d at 1088 (internal quotation

marks omitted). The district court’s finding that Strand’s scope of duty in rendering

“preliminary services” did not include an investigation to determine which local

government entity had jurisdiction over the off-site sewer line crossing is clearly

erroneous only if it was “(1) illogical, (2) implausible, or (3) without support in

inferences that may be drawn from the facts in the record.” United States v.

Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc) (internal quotation marks

omitted). Here, evidence in the record supports the district court’s finding that the


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scope of Strand’s duty did not include an obligation to discover the Mohave County

Flood Control District’s requirements for construction of the jail’s off-site sewer

line crossing during the preliminary design phase. Plaintiffs did not carry their

burden of providing specific evidence detailing the scope of Strand’s “preliminary

services” in this case and whether the scope described in the parties’ preliminary

services agreement required Strand to discover the regulatory requirements for an

off-site sewer line crossing. The district court’s findings regarding the scope of

Strand’s duty and lack of any breach were not clearly erroneous.

      2. The district court did not abuse its discretion in awarding attorneys’ fees

and costs to Durrant, Strand, and PK after entering final judgment in their favor

with respect to Plaintiffs’ contract claims. Durrant and FUSA’s contract provided

for attorneys’ fees and costs to be awarded to the prevailing party, and Durrant

defeated FUSA’s contract claims during a bench trial. The parties did not waive

their claim to attorneys’ fees, see Fed. R. Civ. P. 54(d)(2)(A), and the district court

was within its discretion to find Durrant to be the prevailing party with respect to

FUSA’s contract claims. See Berry v. 352 E. Virginia, L.L.C., 261 P.3d 784, 788

(Ariz. Ct. App. 2011); cf. Kaman Aerospace Corp. v. Ariz. Bd. of Regents, 171

P.3d 599, 609 (Ariz. Ct. App. 2007). The district court was also within its

discretion to award Strand and PK their fees incurred up to the time the contract


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claims against them were dismissed on summary judgment. Ariz. Rev. Stats. § 12-

341.01.A (“In any contested action arising out of a contract, express or implied, the

court may award the successful party reasonable attorney fees.”); see Rudinsky v.

Harris, 290 P.3d 1218, 1224 (Ariz. Ct. App. 2012); Modular Mining Sys., Inc. v.

Jigsaw Techs., Inc., 212 P.3d 853, 859–60 (Ariz. Ct. App. 2009).

      We deny Strand’s and PK’s request for attorneys’ fees on appeal without

prejudice to filing a proper motion pursuant to Ninth Circuit Rule 39-1.6.

      AFFIRMED.




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