                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 13 2012

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



                            FOR THE NINTH CIRCUIT


BULLION MONARCH MINING, INC.,                    No. 10-17320

              Plaintiff - Appellant,             D.C. No. 3:08-cv-00227-ECR-
                                                 VPC
  v.

NEWMONT USA LIMITED, a Delaware                  MEMORANDUM*
Corporation, DBA Newmont Mining
Corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Nevada
                 Edward C. Reed, Senior District Judge, Presiding

                       Argued and Submitted May 16, 2012
                            San Francisco, California


Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.

       Appellant Bullion Monarch Mining, Inc. (“Bullion”) appeals the district

court’s grant of summary judgment in favor of Defendant-Appellee Newmont USA


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Limited (“Newmont”). Bullion filed suit seeking royalty payments which it alleges

Newmont owes as a successor-in-interest to a 1979 mining contract. The district

court granted summary judgment based on laches. We have jurisdiction under 28

U.S.C. § 1291, and we affirm the district court.

      Under Nevada law, laches requires a showing that “there was an inexcusable

delay in seeking the petition” and “there were circumstances causing prejudice to

respondent.” Nevada v. Eighth Judicial Dist. Ct., ex rel. Cnty. of Clark, 994 P.2d

692, 697 (Nev. 2000) (internal quotations and citation omitted).

      Bullion argues that it delayed in reliance on Newmont’s assurances that the

royalties owed under the 1979 contract would be paid, and that its delay was

therefore excusable. The district court, resolving the disputed facts in Bullion’s

favor, assumed that these assurances were made but found them insufficient to

excuse Bullion’s delay. We agree with the district court that “proper diligence

required some attempt to verify that Newmont’s actions were consistent with its

counsel’s alleged verbal assurance to Bullion, either by independent investigation

or by demanding accounting from Newmont.”

      Bullion further argues that Newmont failed to establish that it was

prejudiced by Bullion’s delay. Bullion argues that the summary judgment ruling

should be limited in its scope as the laches defense can only apply to mining claims


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which Newmont has placed in production. Bullion contends that Newmont has not

shown, and cannot show, any prejudice as to claims that Newmont has not yet

developed. Bullion raised its prejudice argument for the first time in its Motion to

Reconsider in district court, and that court found that Bullion had waived its

argument by not raising it earlier. See School Dist. No. 1J v. ACandS, Inc., 5 F.3d

1255, 1263 (9th Cir. 1993). The district court did not abuse its discretion in so

finding. 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).

      AFFIRMED.




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