                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                    December 14, 2012

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
JET CAPITAL,

             Plaintiff–Appellant,

and

SOUTHWEST AVIATION
SPECIALTIES, LLC; MIDWEST AIR
EXPRESS, LLC,

             Plaintiffs,

v.                                                        No. 12-5018
                                             (D.C. No. 4:10-CV-00089-CVE-TLW)
UNITED STATES OF AMERICA,                                 (N.D. Okla.)

             Defendant–Appellee,

and

DEPARTMENT OF THE NAVY AND
UNITED STATES MARINE CORPS;
CARDINAL AVIATION, INC.;
CAROLINA CONSTRUCTION
CONSULTANTS, d/b/a Thomas Dailey;
HCC INSURANCE HOLDINGS, INC.;
U.S. SPECIALTY INSURANCE
COMPANY,

             Defendants.


                           ORDER AND JUDGMENT*

      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
                                                                           (continued)
Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


         Jet Capital appeals from the district court’s orders granting summary judgment

to the United States on Jet Capital’s claim under the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, and denying a motion for a new trial.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                            I

         Jet Capital owned a Beechcraft King Air Model C90 aircraft (the “Aircraft”)

that it leased to Cardinal Aviation, Inc., d/b/a Thomas Dailey. Dailey, through his

other business Carolina Construction Consultants, in turn contracted to provide flight

hours on a Beechcraft C90 or an equivalent aircraft to the United States Marine

Corps.

         On April 25, 2008, a Marine Corps pilot flew the Aircraft for approximately an

hour. Upon landing at the Baton Rouge Metropolitan Airport in Louisiana, the

Aircraft was damaged when the right main landing gear collapsed after the upper

torque knee failed. The upper torque knee had a preexisting fracture with coloring

consistent with corrosion and another shiny fracture without corrosion.


ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.


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      In February of 2002, the Federal Aviation Administration issued Airworthiness

Directive (“AD”) 2002-01-10, which required inspection for fatigue cracks in the

torque knees of Beechcraft Model C90 aircraft within 100 hours of flight time after

issuance of the AD. If no cracks were found, the next inspection was to take place

within the next 1,000 hours of flight time. On January 3, 2003, an initial inspection

of the Aircraft revealed no cracks. On that date, it had 9,327.7 hours of flight time;

thus, the next inspection was required before 10,327.7 hours of flight time. When the

Aircraft was leased to Cardinal, it had 10,306.8 hours of flight time. No additional

record of inspections was noted as required by the AD, even though the Aircraft had

exceeded 10,327.7 hours of flight time at the time of the crash.

      After the torque knee failed, Jet Capital filed a complaint asserting a general

negligence claim against the United States under the FTCA. In its first amended

complaint, Jet Capital changed its claim, asserting the United States was negligent

per se because its pilot violated federal aviation regulations by operating the Aircraft

outside scheduled maintenance intervals required by the AD.

      The United States moved for summary judgment, asserting that Louisiana law

does not recognize a claim of negligence per se and therefore there was no

corresponding state-law cause of action, as the FTCA requires. In response, Jet

Capital conceded that “[i]n this case . . . no duty under Louisiana law exists,” but




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asserted that under Louisiana Civil Code article 3542, the federal aviation regulations

could establish a tort duty.1

       The district court granted summary judgment to the United States. The court

determined that Louisiana does not recognize a claim for negligence per se, federal

regulations do not provide an independent basis for recovery under the FTCA, and

article 3542 is “Louisiana’s choice of law rule governing contract claims and it does

not allow [Jet Capital] to use federal regulations to create a tort duty as a matter of

Louisiana law.”

       Represented by new counsel, Jet Capital filed a motion for a new trial under

Federal Rule of Civil Procedure 59(e). It asserted that Louisiana courts have moved

from traditional negligence terminology towards a duty/risk analysis that focuses on

fault. See La. Civ. Code art. 2315 (“Every act whatever of man that causes damage

to another obliges him by whose fault it happened to repair it.”). Although conceding

that negligence per se is no longer recognized in Louisiana, Jet Capital contended

that a plaintiff could still recover damages based solely upon a defendant’s regulatory

violation. Thus, Jet Capital claimed that the pilot owed a duty to confirm the

airworthiness of the Aircraft before takeoff “under general fault principles, as well as

under federal regulations.”


       1
        “Except as otherwise provided in this Title, an issue of delictual or quasi-
delictual obligations is governed by the law of the state whose policies would be
most seriously impaired if its laws were not applied to that issue.” La. Civ. Code art.
3542.


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      The district court denied the motion for a new trial, finding that Jet Capital

asserted new arguments in an attempt to raise a general negligence claim not alleged

in the amended complaint nor in its response to the motion for summary judgment.

The court noted that Jet Capital ignored its own earlier concession that Louisiana law

does not create a tort duty against the United States under the facts of this case.

Further, the court concluded that even if it were to consider the new arguments, Jet

Capital had not shown that the United States breached a duty to Jet Capital.

                                           II

                                            A

      “We review the district court’s grant of summary judgment de novo, applying

the same legal standard used by the district court.” Kimzey v. Flamingo Seismic

Solutions Inc., 696 F.3d 1045, 1048 (10th Cir. 2012) (quotation omitted). Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “When applying this standard, we view the evidence and draw

reasonable inferences therefrom in the light most favorable to the nonmoving party.”

Kimzey, 696 F.3d at 1048 (quotation omitted).

      The FTCA permits suit against the United States for damages to property

“caused by the negligent or wrongful act or omission” of a government employee

“under circumstances where the United States, if a private person, would be liable to

the claimant in accordance with the law of the place where the act or omission


                                           -5-
occurred.” 28 U.S.C. § 1346(b)(1). The damage to the Aircraft occurred in

Louisiana, and the parties agree that Louisiana law governs. We therefore look to

Louisiana law “to resolve questions of substantive liability.” Miller v. United States,

463 F.3d 1122, 1123 (10th Cir. 2006). “We review the district court’s determinations

of state law de novo.” Ayala v. United States, 49 F.3d 607, 611 (10th Cir. 1995).

         In its amended complaint and opposition to summary judgment, Jet Capital

explicitly based its case entirely on a negligence per se theory, arguing that the

United States was liable because of its alleged violation of federal regulations. Jet

Capital’s response to the United States’ motion for summary judgment acknowledged

that “[i]n this case . . . no duty under Louisiana law exists,” and instead contended

that “the duty required of [the United States] is imposed by Federal Law, namely the

[AD].” However, “where a negligence claim is based on a violation of a federal . . .

regulation, no claim will lie under the FTCA in the absence of some other duty under

the applicable state law.” Klepper v. City of Milford, 825 F.2d 1440, 1448 (10th Cir.

1987).

         Jet Capital did not assert a cognizable duty under state law in its amended

complaint or opposition to summary judgment. Negligence per se has been rejected

in Louisiana. See, e.g., Galloway v. State ex rel. Dep’t of Transp. & Dev., 654 So.2d

1345, 1347 (La. 1995); Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289, 292

(La. 1993) (“The violation of a statute or regulation does not automatically, in and of

itself, impose civil liability.”). Jet Capital did reference Louisiana Civil Code article


                                            -6-
3542 in its response to the motion for summary judgment; however, this state statute

is a choice of law statute and does not create a duty under Louisiana law, as the

district court correctly determined and Jet Capital does not contest.

          Although Jet Capital did allege a general negligence claim in its original

complaint, the amended complaint superseded the original complaint and “render[ed]

it of no legal effect.” Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir.

1991). Before this Court, Jet Capital asserts new arguments in an effort to resuscitate

its general negligence claim. Because Jet Capital abandoned this claim in the district

court, we deem it waived. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127

(10th Cir. 2011); Lone Star Steel v. United Mine Workers of Am., 851 F.2d 1239,

1243 (10th Cir. 1988) (“Ordinarily, a party may not lose in the district court on one

theory of the case, and then prevail on appeal on a different theory.”). Accordingly,

we conclude that the district court properly granted summary judgment for the United

States.

                                              B

          “We review the denial of a Rule 59(e) motion for an abuse of discretion.”

ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1178 (10th Cir. 2011). “A

district court abuses its discretion if it made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.” Id. (quotation omitted).

“Grounds warranting [the grant of a Rule 59(e) motion] include (1) an intervening

change in the controlling law, (2) new evidence previously unavailable, and (3) the


                                             -7-
need to correct clear error or prevent manifest injustice.” Servants of Paraclete v.

Does, 204 F.3d 1005, 1012 (10th Cir. 2000). “It is not appropriate to . . . advance

arguments that could have been raised in prior briefing.” Id.

       Contrary to Jet Capital’s assertions, the district court did not mischaracterize

its opposition to summary judgment, which clearly conceded that no duty existed

under Louisiana law. We agree with the district court that Jet Capital’s Rule 59(e)

motion, by claiming that the United States owed Jet Capital a duty under Louisiana

law, raised a new argument that could have been advanced previously. We conclude

the district court did not abuse its discretion in denying Jet Capital’s motion for a

new trial.

                                           III

       The judgment of the district court is AFFIRMED.


                                                 Entered for the Court


                                                 Carlos F. Lucero
                                                 Circuit Judge




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