FLAGSTONE DEVELOPMENT LLC v. JOYNER LLC (2019)

MEMORANDUM **

Flagstone Development, LLC and Lawrence A. Heath (collectively, “Flagstone”) appeal from the district court’s dismissal of Flagstone’s tort claims, exclusion of Flagstone’s expert witnesses, and grant of summary judgment in favor of Rocky Mountain Timberlands, LLC (“RMT”). RMT conditionally cross-appeals from the district court’s denial of its motion for a new trial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and dismiss in part.

1. Flagstone waived its right to appeal the dismissal of its tort claims by failing to do so when the case was first appealed to this court, 545 F. App'x 602 (9th Cir. 2013) (“Flagstone I”). Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in its opening brief are deemed waived.”). The tort claims were at issue in Flagstone I because the district court had entered final judgment for RMT and the Joyners. Moreover, we expressly remanded only “on the issue of breach of contract.”

2. The district court did not abuse its discretion by excluding the testimony of Sheryl Sacry and James Foley. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141–42, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). The district court properly excluded Sacry’s testimony under Federal Rule of Evidence 702 because, like Dale Grabois’ excluded testimony in Flagstone I, it was based on data with undisclosed methods and unknown reliability, and Sacry offered no independent basis for her calculations. The district court also properly excluded Foley’s testimony pursuant to Rule 702. His report was based on materials—provided in large part by Heath—with undisclosed methods and principles. Further, his report addressed only project feasibility and thus was not relevant to the calculation of lost profits.

3. The district court did not err by granting summary judgment in favor of RMT. See Rearden LLC v. Rearden Commerce, Inc., 683 F.3d 1190, 1202 (9th Cir. 2012). Of the eighteen documents that Flagstone offered as evidence of lost profits, only two—Flagstone’s Investment Prospectus and RMT’s cash flow analysis—are relevant to the calculation of lost profits. Even if the two documents were reliable,¹ they are not self-explanatory; no reasonable jury could rely on the documents, which use technical and specialized terminology, to make a reasonable calculation of lost profits without an expert to guide it. See West v. State Farm Fire & Cas. Co., 868 F.2d 348, 351 (9th Cir. 1989) (citing McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984)) (“[S]ummary judgment is proper if no reasonable jury could differ.”).

4. In light of our disposition of Flagstone’s appeal, RMT’s cross-appeal is moot. We therefore dismiss it.

The orders and judgment of the district court are AFFIRMED. RMT’s cross-appeal is DISMISSED as moot.

FOOTNOTES

1.   They are largely speculative. In Flagstone I, for example, we affirmed the district court’s exclusion of Grabois, whose testimony relied on Flagstone’s Investment Prospectus, on the ground that the Prospectus had been “created before several costly development issues were uncovered.”