NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 26 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAJESTIC HOMES, INC., No. 18-35249

Plaintiff-Appellee, D.C. No. 1:16-cv-00008-SPW

v.

MEMORANDUM*

ROSE HURT,

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted March 6, 2019** Seattle, Washington

Before: GOULD and PAEZ, Circuit Judges, and PREGERSON,*** District Judge.

Rose Hurt (“Hurt”) appeals the district court’s order granting summary

judgment for Majestic Homes, Inc. (“Majestic”). We review de novo a district

* 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 Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. court’s grant of summary judgment. James River Ins. Co. v. Hebert Schenk, P.C.,

523 F.3d 915, 920 (9th Cir. 2008). We affirm.

Hurt contracted to purchase a modular home from Majestic. At the time of

contracting, Hurt made a down payment on the home. Majestic delivered the home

to Hurt’s property, where it remains located. Hurt has made no payments toward

the remaining balance. The parties dispute whether Hurt rejected or revoked

acceptance of the home, and thus would not be obligated to pay for it.

We apply the substantive law of Montana, the forum state, because this case

was removed to federal court under diversity jurisdiction. Med. Lab. Mgmt.

Consultants v. Am. Broad. Cos., Inc., 306 F.3d 806, 812 (9th Cir. 2002). The

Uniform Commercial Code, as codified in Montana law, governs contracts for

modular homes. Little v. Grizzly Mfg., 636 P.2d 839, 842 (Mont. 1981).

Upon delivery of goods, the buyer must accept the goods and pay in

accordance with the contract, Mont. Ann. Code § 30-2-507, or reject the goods, id.

§ 30-2-601. A buyer may accept goods by failing to make an effective rejection

after a reasonable time to inspect the goods. Id. § 30-2-606(1)(b). Hurt’s silence

“count[ed] as acceptance.” Micro Data Base Sys., Inc. v. Dharma Sys., Inc., 148

F.3d 649, 655 (7th Cir. 1998); see also Steinmetz v. Robertus, 637 P.2d 31, 36

(Mont. 1981) (recognizing that even “mere notification of poor quality is not

sufficient to constitute rejection”). Hurt did not reject the home.

2 Under certain circumstances, a “buyer may revoke acceptance” of goods.

Mont. Ann. Code § 30-2-608(1). Such revocation “must occur within a reasonable

time after the buyer discovers or should have discovered the ground for it.” Id.

§ 30-2-608(2). Revocation “is not effective until the buyer notifies the seller of it.”

Id. Hurt first notified Majestic that she revoked her acceptance of the home in her

counterclaims, approximately 16 months after delivery of the home. See Nw.

Truck & Trailer Sales, Inc. v. Dvorak, 887 P.2d 260, 264 (Mont. 1994) (refusing to

give a jury instruction about rejecting or revoking acceptance of goods where the

buyer first notified the seller of the alleged nonconformity of goods in

counterclaims). We agree with the district court that Hurt did not revoke

acceptance within a reasonable time.

Hurt accepted the home from Majestic and did not timely revoke her

acceptance. The district court correctly granted summary judgment.

AFFIRMED.

3