DONALDSON BROS. READY MIX, INC., a Montana corporation v. PHENNEGER & MORGAN, INC., a Washington corporation

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALDSON BROS. READY MIX,
INC., a Montana corporation; CHARLES
F. DONALDSON; CATHERINE L.
DONALDSON; THOMAS SIMPSON,
Plaintiffs - Appellants,
v.
PHENNEGER & MORGAN, INC., a
Washington corporation,
Defendant-third-party-
plaintiff - Appellee,
v.
MCLUCAS AND ASSOCIATES, INC.;
GLENDA MCLUCAS,
Third-party-defendant -
Appellees.
No. 08-35912
D.C. No. 9:06-cv-00138-DWM
MEMORANDUM *
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
FILED
NOV 16 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Argued and Submitted November 5, 2009
Portland, Oregon
Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.
Donaldson Bros. et al. (“Donaldson”) appeal from the district court’s order
granting Phenneger & Morgan, Inc.’s motion for summary judgment. We have
jurisdiction under 28 U.S.C. § 1291. Our review is de novo, Mendez v. County of
San Bernardino, 540 F.3d 1109, 1123 (9th Cir. 2008), and we affirm.
The district court correctly concluded that Donaldson is not entitled to
equitable indemnification as a matter of law. Donaldson failed to raise a genuine
issue of material fact as to whether it was “free from any active negligence
contributing to the injury causing accident.” Fletcher v. City of Helena, 517 P.2d
365, 370 (Mont. 1973).
Donaldson abandoned on appeal any claim it might have had for
indemnification based on breach of a contractual duty.
The district court did not err by granting summary judgment on Donaldson’s
entire claim for indemnification. Although a district court may not grant summary
judgment on claims not addressed in the motion for summary judgment, Greene v.

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Solano County Jail, 513 F.3d 982, 990 (9th Cir. 2008), the motion need not address
all factual allegations potentially relevant to the claim.
AFFIRMED.

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