GoE3 LLC, an Arizona limited liability corporation v. EATON CORP., an Ohio corporation

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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GoE3 LLC, an Arizona limited liability
corporation,

Plaintiff-Appellant,

v.

EATON CORP., an Ohio corporation,

Defendant-Appellee.

No. 18-17387

D.C. No. 2:16-cv-03449-JJT

MEMORANDUM
*

Appeal from the United States District Court
for the District of Arizona
John J. Tuchi, District Judge, Presiding

Submitted March 04, 2020
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Phoenix, Arizona

Before: CLIFTON, OWENS and BENNETT, Circuit Judges.

Plaintiff-Appellant GoE3, LLC (“GoE3”) appeals the district court’s order
granting Eaton Corp.’s (“Eaton”) motion for summary judgment and the district
court’s order denying GoE3’s motion for reconsideration. We have jurisdiction

*
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).
FILED

MAR 23 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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under 28 U.S.C. § 1291 and review a grant of summary judgment de novo and
denial of a motion for reconsideration for abuse of discretion. See United Nat. Ins.
Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 776, 780 (9th Cir. 2009). We
affirm.
1. The district court properly granted Eaton’s motion for summary judgment.
Viewing the evidence in the light most favorable to GoE3, see Pyramid Techs.,
Inc. v. Hartford Casualty Insurance Co., 752 F.3d 807, 818 (9th Cir. 2014), we
agree with the district court that GoE3 did not introduce any evidence of a genuine
dispute over whether Eaton agreed (in writing or otherwise) to the additional terms
GoE3 alleges Eaton breached. Fed. R. Civ. P. 56(c)(1)(A).
GoE3 provided the district court no evidence of the content of any contract
terms it claims Eaton breached—indeed, its response to the summary judgment
motion attached no contract documents at all. Brimacombe’s declaration lacked
any admissible facts about the terms of any allegedly breached material contract
terms. See FTC v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir.
1997) (“A conclusory, self-serving affidavit, lacking detailed facts and any
supporting evidence, is insufficient to create a genuine issue of material fact.”).
And even if the district court considered as admissible evidence a deposition page
referenced in Brimacombe’s declaration, that does not change the outcome. That
page only lists some of the specifications GoE3 sought. GoE3 submitted no

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admissible evidence (from that page or otherwise) that Eaton accepted any
specifications as part of the original contract terms or as part of a subsequent
contractual modification.
Brimacombe’s deposition testimony, introduced by Eaton, is similarly
unhelpful to GoE3. See Pyramid Technologies, 752 F.3d at 818 (any inference for
nonmoving party “must have a sufficient evidentiary basis”). Brimacombe never
identified any evidence or facts that showed that Eaton agreed to the additional
terms or specifications. At best, the testimony established that GoE3 sought certain
specifications and functions for its charging stations, not that Eaton ever agreed to
GoE3’s requests.
Finally, GoE3’s argument that the doctrine of part performance applies is
unsupported by the record. GoE3 has not shown that its partial payment was
“unequivocally referable” to the contract modifications, see Owens v. M.E. Schepp
Ltd. P’ship, 182 P.3d 664, 669 (Ariz. 2008), rather than simply a payment pursuant
to the original contract.
Since GoE3 failed to introduce any evidence that created a genuine dispute
of material fact as to whether Eaton agreed to the terms GoE3 claims Eaton
breached, it did not carry its burden to show that the terms it sought to enforce

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were part of the contract. Thus, its breach of contract claim fails, and the district
court properly granted summary judgment.
1

2. The district court also did not abuse its discretion in denying GoE3’s motion
for reconsideration. Parties cannot use a Rule 59(e) motion to get a “second bite at
the apple.” Weeks v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001) (citation omitted).
GoE3 sought to provide additional evidence that it could have, but did not, attach
to its summary judgment opposition. It offered no justification for its original
failure to provide that evidence to the district court. The district court thus properly
denied the reconsideration motion.
2
See Sch. Dist. No. 1J, Multnomah Cty. v.
ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (describing standard for Rule
59(e) motion).
AFFIRMED.

1
We decline to consider GoE3’s additional arguments raised for the first time on
appeal. See Alaska Airlines, Inc. v. United Airlines, Inc., 948 F.2d 536, 546 n.15
(9th Cir. 1991).
2
We decline to consider GoE3’s manifest injustice argument, which was not raised
before the district court. See Alaska Airlines, 948 F.2d at 546 n.15.