                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 08 2010

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




                            FOR THE NINTH CIRCUIT



BRAD BAILEY,                                     No. 08-17674

              Plaintiff - Appellant,             D.C. No. 2:07-cv-00178-KJD-LRL

  v.
                                                 MEMORANDUM *
STEVE ABBOTT,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                             Submitted May 14, 2010 **
                              San Francisco, California

Before: HUG and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              On the motion of the parties, the panel unanimously concludes this
case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
         This case presents an issue of contract interpretation under Nevada law.

Brad Bailey and Steve Abbott agreed to form a limited liability company to run a

proposed self-storage business (“the Company”). Pursuant to the integrated

operating agreement signed by the parties, Bailey agreed to pay Abbott $12,000

upon execution and make payments to the Company. Abbott agreed to “contribute

his property interest” in the parcel of land where the self-storage facility would be

built.

         Bailey sued for breach of contract and fraudulent inducement, alleging that

Abbott breached the agreement because the property he contributed was

encumbered by a lien. Bailey also alleges that Abbott fraudulently induced

Bailey’s agreement to the contract by failing to disclose the lien, and never

intended to perform his obligations.

         The district court granted Abbott’s motion for summary judgment, holding

Bailey could not show that Abbott breached the contract, provided no evidence to

raise a genuine issue on the question of fraudulent inducement, and could not

obtain specific performance because Bailey himself had not performed.

         Bailey asserts that the district court erred by failing to consider extrinsic

evidence in construing the agreement. We do not reach this question. Bailey was

obligated to pay Abbott $12,000 concurrent with the execution of the agreement,



                                              2
but failed to do so. Bailey raised no genuine issue of material fact suggesting he

performed and therefore may not enforce the agreement against Abbott or obtain

specific performance. Serpa v. Darling, 810 P.2d 778, 782 (Nev. 1991).

      The grant of summary judgment was also proper as to the fraud claim, as

Bailey admitted in deposition testimony that he believed Abbott intended to

perform when he executed the agreement. Bulbman, Inc. v. Nevada Bell, 825 P.2d

588, 592 (Nev. 1992).

      AFFIRMED.




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