M-Cubed Llc, a Washington limited liability company v. Maersk Line Ltd, a Delaware 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NOT FOR PUBLICATION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
M-CUBED LLC, a Washington limited
liability company; JOHN T. SESSIONS
HISTORIC AIRCRAFT FOUNDATION,
Plaintiffs - Appellants,
v.
MAERSK LINE LTD, a Delaware
corporation,
Defendant,
and
MAERSK INC, a New Your corporation;
AP MOLLER-MAERSK A/S, a Danish
Company,
Defendants - Appellees.
No. 08-35194
D.C. No. 2:06-cv-01403-MJP
MEMORANDUM *
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted August 6, 2009
Seattle, Washington
FILED
MAR 11 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable James C. Mahan, United States District Judge for the**
District of Nevada, sitting by designation.
Before: PREGERSON and BEA, Circuit Judges, and MAHAN, District Judge.**
M-Cubed LLC (“M-Cubed”) interlocutorily appeals the district court’s
partial grant of summary judgment in favor of Maersk Line Ltd. (“Maersk”). The
parties are familiar with the facts of this case, which we repeat here only to the
extent necessary to explain our decision.
I. Jurisdiction
“[D]istrict courts shall have original jurisdiction, exclusive of the courts of
the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to
suitors in all cases all other remedies to which they are otherwise entitled.” 28
U.S.C. § 1333(1). The “savings to suitors” clause “permits the plaintiff to bring an
action ‘at law’ in the federal district court, provided the requirements of diversity
of citizenship and amount in controversy are met.” Ghotra v. Bandila Shipping,
Inc., 113 F.3d 1050, 1054 (9th Cir. 1997). “If a claim for relief is within the
admiralty or maritime jurisdiction and also within the court’s subject-matter
jurisdiction on some other ground, the pleading may designate the claim as an
admiralty or maritime claim . . . .” Fed. R. Civ. P. 9(h)(1). “If [Plaintiff] wants the
admiralty rules to apply, the plaintiff or other party asserting a claim needs to
include a statement in the pleadings substantially like the following: ‘This is an

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admiralty or maritime claim within the meaning of Rule 9(h).’” 1 Steven F.
Friedell, Benedict on Admiralty § 133 at 8-67 (7th ed., rev. 2009). “If a claim
arises within the admiralty jurisdiction and some other basis of federal jurisdiction
and the plaintiff . . . does not want the admiralty procedures to be applied (for
example if it wants to have a jury trial), then the Rules of Civil Procedure do not
require the plaintiff . . . to state anything further.” Id. § 133, at 8-68 (parenthetical
in original).
In the case before us, M-Cubed did not designate its claim as an admiralty
claim. Furthermore, M-Cubed’s complaint made a jury demand, which would not
be available in admiralty. See Fed. R. Civ. P. 38(e). M-Cubed’s jurisdictional
statement also clearly referenced the diversity and amount in controversy
requirements of a case brought at law. The district court granted certification
under 28 U.S.C. § 1292(b). Because we agree that resolution of this appeal would
materially advance the ultimate termination of litigation, we exercise our discretion
to permit this appeal. See 28 U.S.C. § 1292(b).
II. Analysis
As a preliminary matter, we conclude that the district court erred in barring
the parties from filing reply briefs. We review a district court’s compliance with
local rules for an abuse of discretion. Bias v. Moynihan, 508 F.3d 1212, 1223 (9th
Cir. 2007). Under Western District of Washington Local Civil Rule 7(b)(3), “[t]he

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moving party may, within the time prescribed in [Local Civil Rule] 7(d), file . . . a
reply brief in support of the motion, together with any supporting material
described in subsection (1).” Here, however, the district court forbade the parties
to file reply briefs and materials at any time, stating “I don’t use them. I’m not
going to read them.” [ER 19]. The district court abused its discretion, and should
have considered the reply materials.
Proceeding to the merits of this appeal, we review de novo a district court’s
decision to grant summary judgment. Universal Health Servs., Inc. v. Thompson,
363 F.3d 1013, 1019 (9th Cir. 2004). Viewing the evidence in the light most
favorable to the nonmoving party, we must determine if there are any genuine
issues of material fact and whether the district court properly applied the law. Id.
We conclude that there are triable issues of material fact. Specifically, a
reasonable factfinder could conclude that Maersk intended to abandon the cargo to
Hong Kong authorities, and therefore deviated from the contract of carriage. Prior
to the cargo’s arrival in Hong Kong, Maersk employees stated that the cargo “will
be seized,” and “knew that this sort of thing was something called strategic
commodity - a license was required.” Maersk employees also described the cargo
to Hong Kong officials as a “military aircraft.” Considering this evidence, a
reasonable factfinder could find that Maersk was substantially certain that the MIG

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was a strategic good subject to forfeiture. See Vision Air Flight Serv., Inc. v. M/V
National Pride, 155 F.3d 1165, 1176 (9th Cir. 1998).
Accordingly, we REVERSE the district court’s grant of summary judgment
and REMAND for trial.

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