H&H Pharmaceuticals, LLC v. Cambrex Charles City, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2021
• Docket: 20-15528
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

H&H PHARMACEUTICALS, LLC, No. 20-15528

Plaintiff-Appellant, D.C. No. 2:16-cv-02946-RFB-BNW v.

CAMBREX CHARLES CITY, INC.; MEMORANDUM* CAMBREX NORTH BRUNSWICK, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding

Submitted February 12, 2021** San Francisco, California

Before: HURWITZ and BRESS, Circuit Judges, and FEINERMAN,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation. H&H Pharmaceuticals, LLC, brought this diversity suit against Cambrex

Charles City, Inc., and Cambrex North Brunswick, Inc. (together, “Cambrex”),

alleging various violations of Nevada common law. The suit stems from failed

business negotiations during which H&H shared certain of its trade secrets with

Cambrex. H&H alleges that Cambrex misappropriated those trade secrets in

violation of the parties’ nondisclosure agreement. The district court granted

summary judgment to Cambrex on the ground that H&H had failed to adduce

evidence quantifying its alleged damages. We have jurisdiction over H&H’s

appeal under 28 U.S.C. § 1291, and we review de novo the district court’s

judgment. See AXIS Reinsurance Co. v. Northrop Grumman Corp., 975 F.3d 840,

844 (9th Cir. 2020).

The district court’s rationale for granting summary judgment was

straightforward. Citing Nevada substantive law, the court observed that “[p]roof of

damages is an essential element of all of H&H’s claims.” Citing Weinberg v.

Whatcom County, 241 F.3d 746, 751 (9th Cir. 2001), the court explained that

“[s]ummary judgment is appropriate when proof of damages is an essential

element of a party’s claim, and the party ‘has no expert witnesses or designated

documents providing competent evidence from which a jury could fairly estimate

damages.’” And the court noted that “H&H ha[d] not submitted any documents

identifying the amount of damages, describ[ed] how these damages shall be

2 20-15528 calculated, []or … submitted any expert testimony on the matter.” Given all this,

the court concluded that, “[b]ecause H&H ha[d] failed to proffer competent

evidence from which a jury or factfinder could estimate damages, or in the case of

[one] claim, pecuniary loss,” Cambrex was entitled to summary judgment.

In its opening appeal brief, H&H does not dispute the proposition that

damages is an essential element of each of its claims. Moreover, H&H embraces

the proposition articulated in Weinberg that in order to forestall summary

judgment, it had to “provide expert testimony and/or documents providing

competent evidence from which a jury could fairly estimate damages.” See

Magnetar Techs. Corp. v. Intamin, Ltd., 801 F.3d 1150, 1159 (9th Cir. 2015)

(holding that the plaintiff on summary judgment must “provide evidence such that

the jury is not left to ‘speculation or guesswork’ in determining the amount of

damages to award”) (quoting McGlinchy v. Shell Chem. Co., 845 F.2d 802, 811

(9th Cir. 1988)). And yet H&H’s opening brief does not point to any evidence that

would allow a jury to quantify or fairly estimate its damages.

Because H&H’s opening brief fails to show—or even attempt to show—that

the district court erred in concluding that it did not adduce competent evidence

from which a jury could calculate or estimate its damages, its appeal necessarily

fails. See Paladin Assocs. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir.

2003) (holding that the appellant’s failure to develop any challenge to a conclusion

3 20-15528 by the district court waives the issue). H&H’s belated attempt in its reply brief to

fill that hole in its opening brief is of no avail, for even if the reply brief made

cogent arguments—and it does not—arguments presented for the first time in a

reply brief are waived. See Avila v. L.A. Police Dep’t, 758 F.3d 1096, 1101 (9th

Cir. 2014) (“Arguments ‘not raised clearly and distinctly in the opening brief’ are

waived.”) (quoting McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009)).

AFFIRMED.

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