Willis McAllister v. Adecco USA, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 22, 2020
• Docket: 18-17393
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 22 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WILLIS C. MCALLISTER, No. 18-17393

Plaintiff-Appellant, D.C. No. 1:16-cv-00447-DKW-KJM v.

CURTIS L. BRUNK; ADECCO USA, INC.; MEMORANDUM* TRANE U.S. INC.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding

Submitted July 20, 2020**

Before: O’SCANNLAIN, TROTT, and N.R. SMITH, Circuit Judges.

Willis McAllister filed a Motion to Correct the Record on Appeal (Docket

Entry No. 9), which the Appellate Commissioner construed as his opening brief.

He argues that the district court erred by denying him leave to amend his

* 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). complaint. The facts are known to the parties, so we do not repeat them here.

In his notices of appeal, McAllister failed to list the district court orders

denying his motions to amend his complaint. Adecco USA, Inc. and Curtis Brunk

argue that, as a result of McAllister’s error, we cannot reach the merits of his

argument. See Fed. R. App. P. 3(c)(1)(B). However, we “apply Rule 3(c) in a non-

technical manner,” Le v. Astrue, 558 F.3d 1019, 1022 (9th Cir. 2009), focusing on

“whether the affected party had notice of the issue on appeal . . . [and] an

opportunity to fully brief the issue,” Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804

F.2d 1472, 1481 (9th Cir. 1986). Because McAllister raised the leave-to-amend

issue in his putative opening brief and the appellees were able to respond in their

answering briefs, we conclude that McAllister’s error does not deprive us of

jurisdiction.

McAllister claims that the district court did not allow him to file a first

amended complaint, which he contends was an abuse of discretion. However, the

record reflects otherwise. The district court did accept McAllister’s first amended

complaint after striking the three new defendants (and all claims against them) that

he had added without the court’s permission. Because McAllister did not have a

right to add new defendants without seeking leave of the court, we conclude that

there was no abuse of discretion. See Fed. R. Civ. P. 15(a)(2).

McAllister filed two motions for leave to file a second amended complaint.

2 The first was denied because McAllister failed to include a proposed pleading, as

required by the court’s local rules. The second was denied because the district

court concluded that his claims were either futile as time-barred or futile as pled.

Because McAllister offers no argument as to why either decision was an abuse of

discretion, he abandoned the issue. See Leer v. Murphy, 844 F.2d 628, 634 (9th

Cir. 1988).

We do not consider the arguments concerning the grant of summary

judgment made in the Equal Employment Opportunity Commission’s amicus brief

because McAllister did not raise that issue in his opening brief. See Zango, Inc. v.

Kaspersky Lab, Inc., 568 F.3d 1169, 1177 n.8 (9th Cir. 2009); United States v.

Gementera, 379 F.3d 596, 607 (9th Cir. 2004).

McAllister’s Motion to Correct the Record on Appeal, filed with this court

on August 5, 2019, and construed as his opening brief, is DENIED.

AFFIRMED.