Willis McAllister v. Adecco USA, Inc. ( 2020 )


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  •                            NOT FOR PUBLICATION                           FILED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.
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    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.
    3