James Hilliard v. Murphy Land Company, LLC ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 4 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES C. HILLIARD, No. 20-35002
Plaintiff-Appellant, D.C. No. 1:18-cv-00232-DCN
v.
MEMORANDUM*
MURPHY LAND COMPANY, LLC, an
Idaho Limited Liability Company,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Idaho
David C. Nye, Chief District Judge, Presiding
Submitted February 1, 2021**
Seattle, Washington
Before: GRABER, McKEOWN, and PAEZ, Circuit Judges.
James Hilliard appeals the district court’s grant of summary judgment for
Murphy Land Company, LLC. Hilliard had an option to buy Crystal Hills Farm
from Murphy Land, but Murphy Land sold the property to someone else when the
*
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).
option expired. Hilliard then sued, seeking a declaration that he had exercised his
option in time. The district court concluded that, even if Hilliard had exercised the
option, the case was moot because the district court could not change the
ownership of the property given that it was no longer owned by Murphy Land. We
review the grant of summary judgment de novo, Sandoval v. Cnty. of Sonoma, 912
F.3d 509, 515 (9th Cir. 2018), and affirm.
Although Hilliard contends that the case would not have become moot if he
had been permitted to amend his complaint, in fact Hilliard did not seek to amend
his complaint. The error, he argues, is that the district court did not sua sponte
construe parts of his summary judgment brief as a motion to amend. The problem
is that at the summary judgment hearing, Hilliard told the district court that he was
not moving to amend his complaint and that he would do so only after resolution of
the motion. Understandably, the district did not treat his brief as a motion to
amend.
Hilliard maintains that courts have an absolute duty to treat new arguments
raised in a brief as motions to amend. But we have held that “summary judgment
is not a procedural second chance to flesh out inadequate proceedings.” Wasco
Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (internal
quotation marks omitted). We have also more than once affirmed a district court’s
decision not to consider new issues and claims in the briefing as a motion to
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amend. See, e.g., Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963 (9th Cir.
2006); 389 Orange St. Partners v. Arnold, 179 F.3d 656 (9th Cir. 1999). And
where we have reversed a district court for not treating new claims raised in a brief
as a motion to amend, we have not done so when, as here, the party specifically
indicated that it was not seeking to amend until after resolution of the motion. See
Desertrain v. City of Los Angeles, 754 F.3d 1147 (9th Cir. 2014); Kobold v. Good
Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1038 n.4 (9th Cir. 2016); Edwards v.
Occidental Chem. Corp., 892 F.2d 1442, 1445 n.2 (9th Cir. 1990).
The district court therefore did not abuse its discretion in declining to
consider the new claims as a motion to amend. Cf. 3 MOORE’S FEDERAL
PRACTICE § 15.14 (2017) (“[I]t is not an abuse of discretion for the court to fail
to grant leave to amend when leave was not sought.”). Hilliard’s derivative
arguments that Federal Rule of Civil Procedure 15 applies and that the case was
not moot likewise fail.
The district court concluded that, if Hilliard moved to amend after summary
judgment, the motion would fail. A party may amend after the scheduling deadline
only with “good cause,” Fed. R. Civ. P. 16, and the central inquiry is “whether the
requesting party was diligent in seeking the amendment.” DRK Photo v. McGraw-
Hill Global Educ. Holdings, LLC, 870 F.3d 978, 989 (9th Cir. 2017).
The district court did not abuse its discretion in finding that Hilliard was not
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diligent, because he did not timely move to amend even though he had “both
constructive and actual notice before discovery closed that the relief he was
seeking was moot.” Hillard’s claim that he did not have constructive notice is
beside the point because it is undisputed that Hilliard had actual notice. Indeed,
despite having notice of the sale since Murphy Land’s Answer a month into the
litigation, Hilliard did not timely move to amend, did not move to extend the
deadline to amend, and did not move for a continuance of the summary judgment
motions in order to assert new claims.
Because we affirm the district court’s judgment, we also affirm its award of
attorneys’ fees to Murphy Land. See 389 Orange St. Partners, 179 F.3d at 666.
Murphy Land’s request for attorneys’ fees on appeal may be addressed through
Ninth Circuit Rule 39-1.
AFFIRMED.
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