NOT FOR PUBLICATION FILED

DEC 24 2020

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 20-15042

LIVING ECOLOGY, INC.,

Plaintiff-Appellant, D.C. No. 2:18-CV-1647 JCM (NJK) v.

MEMORANDUM*

BOSCH PACKAGING TECHNOLOGY,

INC.

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Argued and Submitted December 7, 2020 Seattle, Washington

Before: MILLER and BRESS, Circuit Judges, and BASTIAN,** Chief District Judge.

Living Ecology, Inc. (“LEI”) appeals the district court’s order granting

summary judgment to Bosch Packaging Technology, Inc. (“Bosch”) on the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stanley Allen Bastian, United States Chief District Judge for the Eastern District of Washington, sitting by designation.

1 grounds that LEI’s breach of contract claim was barred by the applicable statute of

limitations. We have jurisdiction under 28 U.S.C. § 1291. Because we conclude

that the district court erred in granting the motion for summary judgment, we

reverse and remand.

We review the district court’s grant of summary judgment de novo. L.F. v.

Lake Wash. Sch. Dist. #414, 947 F.3d 621, 625 (9th Cir. 2020). While viewing the

evidence in the light most favorable to the non-moving party, we must determine

“whether there are any genuine issues of material fact and whether the moving

party is entitled to judgment as a matter of law.” Johnson v. Poway Unified Sch.

Dist., 658 F.3d 954, 960 (9th Cir. 2011) (quoting Orr v. Bank of Am., NT & SA,

285 F.3d 764, 772 (9th Cir. 2002)). Reviewing de novo and viewing the facts in the

light most favorable to LEI, we conclude that several issues of material fact exist

and must be resolved by the trier of fact.

(1) There are factual disputes regarding whether the Bosch 2014 Terms

and Conditions, which purported to shorten the statute of limitations for all claims

between the parties, were identified with sufficient clarity in the invoice to be part

of the parties’ agreement. LEI argues that Bosch’s invoice did not incorporate

those terms and conditions into the contract because the invoice referred to terms

and conditions by different names and Bosch did not attach any documents to the

2 invoice. Under Nevada law, “[w]here reference in a contract . . . indicates an

intention to incorporate [a document] generally, such reference becomes a part of

the contract for all purposes.” Lincoln Welding Works, Inc. v. Ramirez, 647 P.2d

381, 383 (Nev. 1982). Moreover, if the document is made a part of the contract by

express terms, the terms of the document “will control with the same force as

though incorporated in the very contract itself.” Id. at 384. However, “[f]actual

disputes regarding breach of contract are questions for a jury to decide.” State,

Univ. & Cmty. Coll. Sys. v. Sutton, 103 P.3d 8, 15 (Nev. 2004).

The district court found that Bosch’s invoice made “clear and unambiguous”

reference to the 2014 Terms and Conditions. We disagree. The invoice contained

three conflicting references to terms and conditions. The first reference was to “the

enclosed supplementary General Conditions for the Supply of Machinery.” The

second reference was to “our attached ‘Terms and Conditions.’” The third

reference was to “the attached documents and our General Terms and Conditions

of Sale.” The invoice itself also contained a section entitled “Terms and

conditions.” Moreover, both parties agree that Bosch did not attach any additional

documents to the invoice.

Bosch argues that, even if the invoice was inconsistent in its naming

conventions, the invoice still made multiple references to “enclosed” or “attached”

3 documents, which must have called LEI’s attention to the existence of a collateral

document. But this argument still depends on the unresolved factual dispute of

whether the references in the invoice were clear enough to call LEI’s attention to

the specific collateral document Bosch intended to incorporate. Moreover, under

Nevada law, ambiguities in the contract are construed against the drafter, which

here was Bosch. Anvui, LLC v. G.L. Dragon, LLC, 163 P.3d 405, 407 (Nev. 2007).

(2) There are factual disputes regarding whether LEI had access to the

2014 Terms and Conditions during the contract negotiations. LEI argues that these

terms and conditions were not reasonably available because they were not attached

to the invoice, there is no evidence in the record that LEI received them, and Bosch

never told LEI where to access them. See Lincoln Welding Works, 647 P.2d at 384

(considering the degree to which the parties were “acquainted” with the document

in determining whether it was incorporated by reference).

Bosch argues that LEI had access to the 2014 Terms and Conditions because

Bosch has a standard practice of attaching its terms and conditions to each invoice

and LEI had previously purchased a different piece of equipment from Bosch. But

there is nothing in the record showing that LEI received the 2014 Terms and

Conditions with its previous purchase or that LEI knew that these terms and

conditions governed all Bosch transactions. There is also nothing in the record

4 indicating that Bosch directed LEI where it could access a copy of the 2014 Terms

and Conditions.

(3) There are factual disputes regarding whether LEI waived any

objections to the 2014 Terms and Conditions by not specifically requesting a copy.

Under Nevada law, when a party accepts a written contract, it cannot be excused

from the conditions of the contract due to “[i]gnorance through negligence or

inexcusable trustfulness.” Campanelli v. Conservas Altamira, S.A., 477 P.2d 870,

872 (Nev. 1970). There is no evidence in the record regarding why LEI failed to

request a copy of potential additional terms and conditions, despite the references

in the invoice.

Therefore, because there are genuine disputes of material fact as to whether

Bosch’s sales contract incorporated the 2014 Terms and Conditions, the district

court erred in granting summary judgment. We accordingly remand to the district

court for further proceedings consistent with this disposition.

REVERSED and REMANDED.

5