                                                                            FILED
                             NOT FOR PUBLICATION
                                                                            MAY 08 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


VITALE & ASSOCIATES, LLC,              )      No. 15-16928
                                       )
      Plaintiff-Appellant,             )      D.C. No. 2:12-cv-01400-JAD-VCF
                                       )
      v.                               )      MEMORANDUM*
                                       )
SUE LOWDEN,                            )
                                       )
      Defendant-Appellee,              )
                                       )

                    Appeal from the United States District Court
                             for the District of Nevada
                    Cam Ferenbach, Magistrate Judge, Presiding

                             Submitted April 18, 2017**
                              San Francisco, California

Before: THOMAS, Chief Judge, and FERNANDEZ and MURGUIA, Circuit
Judges.

      Vitale & Associates, LLC (“Vitale”) appeals the district court’s grant of




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
summary judgment in favor of Sue Lowden on its claim in this diversity action1

that Lowden breached a contract for its polling services. We affirm.

      Lowden sought a seat in the United States Senate, and created the “Sue

Lowden for U.S. Senate” committee (hereafter “the Committee”), whose purpose

was securing that seat for her. Vitale provides polling services to political

campaigns, and entered into a contract with the Committee for the provision of

those services.2 When it was not paid for those services, Vitale brought this action

for breach of contract against Lowden personally.

      Vitale cannot maintain an action against Lowden based upon the theory that

she entered into a contract with it. As it conclusively admitted, any contract was

with the Committee. See Fed. R. Civ. P. 36(b); Conlon v. United States, 474 F.3d

616, 621 (9th Cir. 2007). Thus, the elements of a contract with Lowden personally

were not spelled out. See Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 899

(9th Cir. 2013). And, in general, “a contract cannot bind a nonparty.” EEOC v.

Waffle House, Inc., 534 U.S. 279, 294, 122 S. Ct. 754, 764, 151 L. Ed. 2d 755


      1
       28 U.S.C. § 1332(a); Galam v. Carmel (In re Larry’s Apartment, L.L.C.),
249 F.3d 832, 837 (9th Cir. 2001).
      2
        By failing to respond to Requests for Admission, Vitale was deemed to
have admitted that Lowden “never signed a written contract” for its services and
that “if a contract exists, the parties to the contract are [Vitale] and [the
Committee].” See Fed. R. Civ. P. 36(a)(3), (b).

                                           2
(2002); see also W. States Constr., Inc. v. Michoff, 840 P.2d 1220, 1225 (Nev.

1992). Of course, an agent can sometimes bind a principal. See Great Am. Ins.

Co. v. Gen. Builders, Inc., 934 P.2d 257, 261 (Nev. 1997) (per curiam). Vitale

asserts that J3 Strategies, LLC (hereafter “J3”), which contacted Vitale to obtain its

services, was an agent of Lowden, but that assertion is infirm. When Vitale

admitted that its contract, if any, was with the Committee, it necessarily admitted

that it was the Committee that was bound by J3’s action, if anyone was. By the

same token, Vitale’s claim that the Nevada law of promissory estoppel would bind

Lowden must fail because Vitale did not point to a definitive promise from

Lowden or her agent to sustain its promissory estoppel claim. See Vancheri v.

GNLV Corp., 777 P.2d 366, 369 (Nev. 1989) (per curiam); Lear v. Bishop, 476

P.2d 18, 21–22 (Nev. 1970). At best, Vitale pointed to general public comments

by Lowden. And as to agency, Vitale’s admission that its contract was with the

Committee elides a claim that J3 was speaking as her agent as opposed to the agent

of the Committee. In any event, the statements of J3’s officer (Robert Uithoven)

were similarly general rather than definitive.

      That leaves Vitale with its assertion that the district court erred when it

determined that Lowden was not liable on the contract entered into by the

Committee, which was an unincorporated nonprofit association (UNA) under

                                           3
Nevada law. We disagree. Nevada has adopted the Revised Uniform

Unincorporated Nonprofit Association Act of 2008. See 2009 Nev. Stat. 692,

codified at Nev. Rev. Stat. §§ 81.700–.890; see also Rev. Uniform Unincorp.

Nonprofit Ass’n Act (2008) §§ 1–36, 6D U.L.A. 375–420 (2008) (hereafter

“RUUNAA”). Under the provisions of the Nevada statute, a UNA’s debt is its

own and not that of its members or managers. See Nev. Rev. Stat. § 81.770(1); see

also RUUNAA § 8 cmt. 1, 6D U.L.A. at 390–91. Lowden was undoubtedly a

member3 of the Committee, as a result of which she is not liable for its debts for

her acts as a member, which, again, is the only source of liability on which Vitale

can now rely.4

      Thus, Vitale is reduced to arguing that the Committee is not a UNA.

However, as the district court noted, Vitale submitted no substantial evidence to

that effect. See Galen v. Cty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). Beyond


      3
          See Nev. Rev. Stat. § 81.725.
      4
        Vitale seeks to impose liability upon Lowden by relying on a case which
applied the law of the State of Texas to impose liability upon a candidate for the
United States Senate. See Karl Rove & Co. v. Thornburgh, 39 F.3d 1273, 1284–85
(5th Cir. 1994). However, the case was not decided under the law of Nevada or
pursuant to the provisions of the RUUNAA, which Texas had not adopted. That
case is inapposite. Moreover, it was receded from when the principles set forth in
the predecessor of RUUNAA were adopted by the Texas Legislature. See MT
Falkin Invs., L.L.C. v. Chisholm Trail Elks Lodge No. 2659, 400 S.W.3d 658,
664–67 (Tex. App. 2013).

                                          4
that, the coverage of the statute is very broad;5 so broad, in fact, that it specifically

and carefully excludes groups of individuals (for example married couples)6 that

we would not usually think of as UNA’s at all. In this case there can be no real

doubt that at least two persons were joined for a specific nonprofit purpose. See

Nev. Rev. Stat. § 81.740. Furthermore, the record indicates that there was

structure to the Committee—specific duties and lines of authority, that is, general

governing principles7 and established practices.8

       As a last gasp, Vitale argues that because J3 was hired without the approval

of the Committee’s members,9 the Committee is not a UNA. However, Vitale

neither presented evidence that the existing members did not approve, nor showed

that they had to.10

       In fine, the district court did not err when it determined that Lowden was not

personally liable to Vitale.

       AFFIRMED.



       5
           See Nev. Rev. Stat. § 81.740.
       6
           Id. § 81.740(2); see also RUUNAA § 2 cmts. 1–8, 6D U.L.A. at 380–83.
       7
           See Nev. Rev. Stat. § 81.715.
       8
           See id. § 81.710; see also RUUNAA § 2 cmts. 1, 2, 6D U.L.A. at 380–81.
       9
           See Nev. Rev. Stat. § 81.805(1)(b).
       10
            See id.; see also RUUNAA § 2 cmt. 4, 6D U.L.A. at 381.

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