Boracchia

concurring and dissenting:

I agree with my colleagues (1) that the district court correctly applied California’s choice of law principles to determine that the contract’s Indiana choice of law provision was enforceable; (2) that all of Bo-raeehia’s claims accrued in 1995 when Biomet’s letter terminating the contract was received; and (3) that summary judgment as to Boracchia’s California state statutory claims was proper. I must respectfully dissent from one part of the disposition, however, because I believe that Boracchia waived any argument regarding the applicability of the UCC to his breach of contract claim.

Our circuit will not consider an argument on appeal unless it was “raised sufficiently for the trial court to rule on it.” See Cornhusker Cas. Ins. Co. v. Kachman, 553 F.3d 1187, 1191-92 (9th Cir.2009); In re E.R. Fegert, 887 F.2d 955, 957 (9th Cir.1989). I do not believe that this standard was met here. Boracchia admits that this argument was not raised in his summary judgment papers, but argues that he sufficiently raised it in oral argument. However, the oral argument transcript shows that his lawyer asserted it only in the form of a conclusory comment that the UCC…

MEMORANDUM *

Edward Boracchia and Boracchia & Associates (collectively, “Boracchia”) appeal the district court’s order dismissing their claims as time-barred under the statute of limitations. We affirm in part, reverse in part, and remand for further proceedings.

The question before us in this case is whether the district court properly applied the Indiana Uniform Commercial Code (“Indiana UCC”) and its four-year statute of limitations, Ind.Code § 26-1-2-725(1) (2008), to bar Boracchia’s breach of contract claim. Biomet argues that Bo-racchia waived any challenge to whether the Indiana UCC applies, and any arguments that the Indiana twenty-year statute of limitations applies, by failing to raise such arguments before the district court in their opposition to Biomet’s Motion to Dismiss. Boracchia did not discuss the applicable statute of limitations in their opposition to Biomet’s Motion to Dismiss, but raised the issue at oral argument. At the hearing, the district court reprimanded Boracchia’s attorney for failing to make the arguments in their opposition brief, but did not as its ratio decidendi state that the arguments were waived. In its written order, district court stated…