Donaldson Bros. Ready Mix, Inc, et al v. Phenneger & Morgan, Inc., et al, No. 08-35912 (9th Cir. 2009)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 16 2009 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS DONALDSON BROS. READY MIX, INC., a Montana corporation; CHARLES F. DONALDSON; CATHERINE L. DONALDSON; THOMAS SIMPSON, Plaintiffs - Appellants, No. 08-35912 D.C. No. 9:06-cv-00138-DWM MEMORANDUM * v. PHENNEGER & MORGAN, INC., a Washington corporation, Defendant-third-partyplaintiff - Appellee, v. MCLUCAS AND ASSOCIATES, INC.; GLENDA MCLUCAS, Third-party-defendant Appellees. Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Argued and Submitted November 5, 2009 Portland, Oregon Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges. Donaldson Bros. et al. ( Donaldson ) appeal from the district court s order granting Phenneger & Morgan, Inc. s motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291. Our review is de novo, Mendez v. County of San Bernardino, 540 F.3d 1109, 1123 (9th Cir. 2008), and we affirm. The district court correctly concluded that Donaldson is not entitled to equitable indemnification as a matter of law. Donaldson failed to raise a genuine issue of material fact as to whether it was free from any active negligence contributing to the injury causing accident. Fletcher v. City of Helena, 517 P.2d 365, 370 (Mont. 1973). Donaldson abandoned on appeal any claim it might have had for indemnification based on breach of a contractual duty. The district court did not err by granting summary judgment on Donaldson s entire claim for indemnification. Although a district court may not grant summary judgment on claims not addressed in the motion for summary judgment, Greene v. 2 Solano County Jail, 513 F.3d 982, 990 (9th Cir. 2008), the motion need not address all factual allegations potentially relevant to the claim. AFFIRMED. 3

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