West v. State Farm Mutual Automobile Insurance , 489 F. App'x 153 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 13 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SARAH WEST; AUSRA WEST; JAMES No. 11-35701
WEST,
D.C. No. 9:10-cv-00132-DWN
Plaintiffs - Appellants,
v. MEMORANDUM*
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY; JOHN DOES A, B, AND C,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted July 11, 2012**
Seattle, Washington
Before: REINHARDT, KLEINFELD, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Sarah West and her parents, Ausra and James West, appeal the district
court’s dismissal of their diversity action against State Farm Mutual Automobile
Insurance Company, arising from Sarah West’s involvement in an automobile
accident in a car owned by her parents and insured by State Farm. The Wests
alleged breach of contract, violation of the Montana Unfair Trade Practices Act,
tortious breach of statutory duties, fraud and breach of fiduciary duties, a punitive
damages claim, negligent infliction of emotional distress, and intentional infliction
of emotional distress. The district court granted State Farm’s motion to dismiss for
failure to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6),
concluding that the Wests’ claims were barred by res judicata and collateral
estoppel.
On appeal, the Wests challenge five nondispositive orders by the magistrate
judge. The Wests (1) moved for the magistrate judge to disqualify himself; (2)
moved to compel State Farms’s compliance with untimely discovery requests; (3)
moved to stay proceedings upon State Farm’s motion to dismiss until State Farm
provided answers to the disputed discovery requests; and (4) moved to amend their
complaint. The magistrate judge denied all four motions. The Wests also
challenge the fifth order, in which the magistrate judge took judicial notice of
2
related state court orders under Federal Rule of Evidence 201. The Wests did not
object to any of the magistrate judge’s challenged orders before the district judge.
Finally, the Wests argue on appeal that the magistrate created a legal environment
hostile against them.
Federal Rule of Civil Procedure 72(a) requires a party to serve and file
objections to a magistrate judge’s order on a matter not dispositive of a party’s
claim or defense, within 14 days of being served with a copy of the order. The
Rule further says, “A party may not assign as error a defect in the order not timely
objected to.” Based on this rule, “a party who fails to file timely objections to a
magistrate judge’s nondispositive order with the district judge to whom the case is
assigned forfeits its right to appellate review of that order.” Simpson v. Lear
Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996). The Wests have therefore
forfeited their right to appellate review of the magistrate judge’s nondispositive
orders.
Federal Rule of Appellate Procedure 28(a)(9)(A) provides that the
appellant’s opening brief must have an argument that contains the “appellant’s
contentions and the reasons for them, with citations to the authorities and parts of
3
the record on which the appellant relies.” We have held that “[i]ssues not raised in
the opening brief usually are deemed waived.” Balser v. Dep’t of Justice, 327 F.3d
903, 911 (9th Cir. 2003). We will nevertheless consider the argument if one of
three exceptions apply:
First, we will review an issue not present in an opening brief for
“good cause shown”, or “if a failure to do so would result in manifest
injustice.” Second, “[w]e have discretion to review an issue not raised
by appellant … when it is raised in the appellee’s brief.” Third, we
may review an issue if the failure to raise the issue properly did not
prejudice the defense of the opposing party.
Koerner v. Grigas, 328 F.3d 1039, 1048-49 (9th Cir. 2003) (quoting United States
v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992)) (internal citations removed).
In their opening brief, the Wests do not argue that the district court erred in
granting State Farm’s motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). They did not mention the district court’s order of dismissal, nor did they
discuss res judicata, collateral estoppel, or the statutory exclusivity of the Montana
Unfair Trade Practices Act, the grounds on which the district court based its
dismissal of the Wests’ claims. None of the three Koerner exceptions apply. The
Wests have therefore waived any argument that the district court erred in
dismissing their claims. Similarly, the Wests' failure to challenge the
4
magistrate's alleged creation of a hostile legal environment waived any
such claim.
AFFIRMED.
5