Bestway (Usa), Inc. v. Pietro Sgromo

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 18, 2019
• Docket: 18-16228
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BESTWAY (USA), INC.; et al., Nos. 18-16228 18-17040 Plaintiffs-Appellees, D.C. No. 4:17-cv-00205-HSG v.

LEONARD GREGORY SCOTT; EUREKA MEMORANDUM* INVENTIONS LLC,

Defendants-cross-claimants- Appellees,

PIETRO PASQUALE-ANTONI SGROMO,

Defendant-Appellant,

and

WAGMORE & BARKLESS LLC,

Defendant.

BESTWAY (USA), INC.; et al., No. 19-15709

Plaintiffs-Appellees, D.C. No. 4:17-cv-00205-HSG

v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendant-Appellant,

Defendant,

EUREKA INVENTIONS LLC; LEONARD GREGORY SCOTT,

Defendants-cross-claimants.

BESTWAY (USA), INC.; et al., No. 19-15797

WAGMORE & BARKLESS LLC; et al.,

Defendants.

Appeals from the United States District Court for the Northern District of California Haywood S. Gilliam, Jr., District Judge, Presiding

Submitted December 11, 2019**

** The panel unanimously concludes these cases are suitable for decision

2 18-16228 Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.

In these consolidated appeals, Pietro Pasquale-Antoni Sgromo appeals pro se

from the district court’s summary judgment and orders in this diversity jurisdiction

interpleader action. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

The district court properly denied Sgromo’s motion to compel arbitration

because appellees demonstrated Sgromo waived his right to arbitration. See

Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1259 (9th Cir. 2017) (standard of

review); Martin v. Yasuda, 829 F.3d 1118, 1123-24 (9th Cir. 2016) (whether a

party has waived its right to arbitration is a matter “for judicial determination

unless the parties clearly and unmistakably provide otherwise”; waiver requires

“knowledge of an existing right to compel arbitration,” “acts inconsistent with that

existing right,” and “prejudice to the party opposing arbitration” (citations and

internal quotation marks omitted)).

Because Sgromo failed to oppose cross-claimants’ motion for summary

judgment, plaintiffs’ motion for a preliminary injunction, and plaintiffs’ motion for

attorneys’ fees and costs, we do not consider Sgromo’s challenge to the district

court’s disposition of those motions. See Alaska Airlines, Inc. v. United Airlines,

Inc., 948 F.2d 536, 546 n.15 (9th Cir. 1991) (“It is well established that an

without oral argument. See Fed. R. App. P. 34(a)(2).

3 18-16228 appellate court will not reverse a district court on the basis of a theory that was not

raised below.”); see also Novato Fire Prot. Dist. v. United States, 181 F.3d 1135,

1141 n.6 (9th Cir. 1999) (failure to raise issue at summary judgment waives right

to raise issue on appeal). We do not consider matters not specifically and distinctly

raised and argued in the opening brief, or arguments and allegations raised for the

first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Sgromo’s motion to file an oversized reply brief is granted. The Clerk will

file the oversized brief submitted at Docket Entry No. 62 in No. 18-16228; Docket

Entry No. 39 in No. 18-17040; Docket Entry No. 33 in No. 19-15709; and Docket

Entry No. 29 in No. 19-15797.

Appellees’ motion to seal is granted. The Clerk will maintain under seal

appellees’ supplemental excerpts of record, volume IV.

AFFIRMED.

4 18-16228