WESTERN CHALLENGER, LLC, an Alaska limited liability company v. Don Seymour;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WESTERN CHALLENGER, LLC, an
Alaska limited liability company,
Plaintiff-Appellant,
v.
DON SEYMOUR; et al.,
Defendants-Appellees.
No. 18-35389
D.C. No. 2:16-cv-00915-JCC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted March 6, 2019
Seattle, Washington
Before: GOULD and PAEZ, Circuit Judges, and PREGERSON,** District Judge.
Western Challenger, LLC (“Western Challenger”) appeals the district
court’s grant of summary judgment to Defendants/Appellees Phil Essex, Moorsom
Consulting Group, LLC, and Germanischer Lloyd (USA) Inc. (collectively, “GL”)
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
FILED
APR 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and partial grant of summary judgment to Defendant/Appellee Don Seymour. We
have jurisdiction under 28 U.S.C. § 1292(a)(3) and affirm.
Western Challenger purchased a boat (the “Vessel”) for use as fishing
tender. Before such use, Western Challenger had to obtain a fishery endorsement
and a coastwise endorsement from the Coast Guard. While Western Challenger
was able to obtain a coastwise endorsement through special legislation, it has yet to
obtain the fishery endorsement.
1. There is no evidence that the Coast Guard’s decision to deny Western
Challenger a fishery endorsement, which resulted in Western Challenger’s loss of
use damages, was based upon any alleged breach by any Defendant. The Coast
Guard requires evidence that the Vessel was converted from a minesweeper within
the United States, and it is undisputed that Western Challenger possesses no such
evidence.1 The declaration of Heung Kim, with whom Western Challenger
consulted, regarding his personal experience does not create a genuine dispute of
material fact regarding Coast Guard protocols and requirements. Western
Challenger cannot create a genuine dispute by speculating that, absent Defendants’
alleged breaches, the Coast Guard would have (1) failed to conduct a required
investigation or (2) issued a fishery endorsement even without the necessary
1 It is unclear whether Western Challenger ever argued to the Coast Guard that the
vessel was not actually “rebuilt” under 46 C.F.R. § 67.177(b)(3).

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rebuild evidence.
2. Nor is there a genuine dispute of material fact regarding the relationship
between Seymour’s alleged negligent misrepresentations and Western Challenger’s
loss of use damages. It is undisputed that Western Challenger and Seymour
contracted for and discussed tonnage certification issues, not the rebuild issues
that, as discussed above, prevented Western Challenger from obtaining a fishery
endorsement.
3. Western Challenger appears to have abandoned its agency argument that GL
be held liable for Seymour’s acts. In any event, there is no evidence in the record
that GL gave Seymour actual authority to act as an agent or gave Western
Challenger any reason to believe that Seymour had any such authority.
4. There is no evidence linking GL to Western Challenger’s non-loss of use
damages. Western Challenger could only obtain a coastwise endorsement through
legislative efforts, regardless of whether one or more of the GL-issued tonnage
certificates was inaccurate.
5. The district court did not erroneously grant summary judgment on any
ordinary negligence claim sua sponte. As the district court noted, prior to Western
Challenger’s opposition to Defendants’ second summary judgment motion, no
party had discussed the negligence claim as anything other than a negligent
misrepresentation claim. Indeed, in discussing the First Amended Complaint, the

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substantive allegations of which were identical to those in the Second Amended
Complaint, Western Challenger argued that it was asserting “both a breach of
contract claim . . . as well as a claim for negligent misrepresentation.”
Furthermore, the Second Amended Complaint’s negligence allegations make no
mention of the existence of any duty.
Even if we consider Western Challenger’s reference to an ordinary
negligence claim in its summary judgment opposition as a motion for leave to
amend the complaint, the district court, having previously granted Western
Challenger leave to amend the First Amended Complaint, had “particularly broad”
discretion in deciding whether to grant any such motion. Chodos v. W. Publ’g Co.,
292 F.3d 992, 1003 (9th Cir. 2002) (internal quotation omitted). The district court,
which observed that the Second Amended Complaint “does not articulate sufficient
facts to support a negligence claim[,]” did not abuse its discretion in not granting
leave to amend.
AFFIRMED.

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