Unpublished Disposition, 907 F.2d 154 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 154 (9th Cir. 1990)

No. 89-35751.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and WALLACE, Circuit Judges, and E. DEAN PRICE,*  District Judge.

MEMORANDUM

Ahtanum Orchards appeals from a judgment dismissing its action after a trial before a magistrate. The magistrate concluded he lacked jurisdiction under 28 U.S.C. § 1346(b). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm, but on a theory different from that adopted by the magistrate.

Ahtanum Orchards raises only one issue on appeal: under the facts in this case would Ahtanum Orchards have a cause of action against a private individual under Washington State tort law? The magistrate held that there was no analogous duty governing private parties under Washington State law and, thus, the government could not be liable under the Federal Tort Claims Act. 28 U.S.C. §§ 1346 and 2674. The magistrate asked for briefing on the subject, but to no avail. Magistrate's Opinion at 16. The magistrate was not advised of Holland v. Columbia Irrigation District, 450 P.2d 488 (Wash.1969).

We hold that the magistrate erred in concluding that Washington law does not provide for liability for acts as alleged in the complaint of Ahtanum Orchards. Ordinarily, we would need to reverse and remand, but that is not necessary here.

The magistrate appears to have made determinations, based on the trial over which he presided, as if Washington tort law did apply. The district court found that Ahtanum Orchards "has not established negligence or proximate cause under Washington law." Magistrate's Opinion at 7. It is true that there is some ambiguity in this finding. The term "under Washington law" could mean under Washington general tort law or it might mean that Washington law provides no cause of action for these acts. In addition, the finding is very sparse. Nevertheless, it is the responsibility of the appealing party to request clarification of findings or request additional findings of fact. Fed. R. Civ. P. 52; Reliance Finance Corp. v. Miller, 557 F.2d 674, 681 (9th Cir. 1977). Having failed to do so, Ahtanum Orchards is in no position to complain on appeal.

We therefore affirm the magistrate on the basis that even if Washington does provide a cause of action for a private party in this situation and, therefore, the government may be sued, the magistrate has determined that Ahtanum Orchards failed in its burden of proving negligence and proximate cause. There is sufficient evidence in the record to prevent overturning these determinations.

AFFIRMED.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.

 *

Honorable E. Dean Price, United States District Judge, Eastern District of California, sitting by designation