MacEo Melton v. Alaska Career College, Inc. ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MACEO MELTON, No. 16-35303
Plaintiff-Appellant, D.C. No. 3:15-cv-00209-RRB
v.
MEMORANDUM*
ALASKA CAREER COLLEGE, INC.; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Submitted June 13, 2018**
Anchorage Old Federal Building, Alaska
Before: THOMAS, Chief Judge, and CALLAHAN and BEA, Circuit Judges.
Appellant Maceo Melton (“Melton”) sued the Alaska Career College
(“ACC”), a private institution, and its owners, Jennifer and Don Deitz (“the
Deitzes”) in Alaska state court. Melton was a student in the ACC’s Therapeutic
*
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).
Massage Program. Melton alleged a variety of state and federal law claims. The
ACC and the Deitzes (collectively “defendants”) removed the case to federal court
on the basis of federal question jurisdiction, and eventually moved for summary
judgment. Construing Melton’s request for a continuance to respond to the
summary judgment motion as well as additional discovery as a motion to compel
the defendants to provide discovery, the district court denied it. The district court
subsequently granted summary judgment for the defendants in the entirety. Melton
timely appeals the district court’s denial of his motion to compel the defendants to
provide discovery and its decision to address the state law claims after it dismissed
the federal law claims. Melton has not addressed the merits of the district court’s
grant of summary judgment in his opening brief, and therefore has waived any
such arguments. Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th
Cir. 2003) (noting that this Court “will not consider any claims that were not
actually argued in appellant’s opening brief.”). We have jurisdiction under 28
U.S.C. § 1291. Reviewing the district court’s refusal to permit further discovery
and its decision to exercise jurisdiction over the supplemental state law claims after
dismissing the federal law claims for abuse of discretion, see Garrett v. City &
Cnty. of S.F., 818 F.2d 1515, 1518 (9th Cir. 1987), Costanich v. Dep’t of Soc. &
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Health Servs., 627 F.3d 1101, 1107 (9th Cir. 2010), we affirm.1
1. The party desiring additional discovery must show that “(1) it has set forth
in affidavit form the specific facts it hopes to elicit from further discovery; (2) the
facts sought exist; and (3) the sought-after facts are essential to oppose summary
judgment.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525
F.3d 822, 827 (9th Cir. 2008). A movant’s failure to comply with these
requirements “is a proper ground for denying discovery and proceeding to
summary judgment.” Cal. on behalf of Cal. Dep’t of Toxic Substances Control v.
Campbell, 138 F.3d 772, 779 (9th Cir. 1998) (internal quotation marks omitted).
Melton’s assertions in his affidavit did not suggest—let alone state with
specificity—what facts he wished to elicit through the additional discovery and
why he needed more time. He did not state whether these facts existed. Melton
also did not state whether or how these facts were essential for his ability to oppose
summary judgment. By this time, Melton had had more than a year to conduct
discovery. Consequently, Melton has not shown that the district court abused its
discretion when it denied his motion to compel additional discovery.
2. The supplemental (or pendent) jurisdiction statute, 28 U.S.C. § 1367(a), is
one “of flexibility, designed to allow courts to deal with cases involving pendent
1
As the parties are familiar with the facts and procedural history, we restate
them only as necessary to explain our decision.
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claims in the manner that most sensibly accommodates a range of concerns and
values” such as “economy, convenience, fairness, and comity.” Carnegie–Mellon
Univ. v. Cohill, 484 U.S. 343, 350, 353 (1988). A district court’s supplemental
jurisdiction allows it to exercise jurisdiction over the state law claims arising from
a common nucleus of operative fact as the federal law claims even after the court
has dismissed the latter claims. Id. at 350 n.7. The district court did not err when
it retained jurisdiction because it was more efficient for the district court to resolve
the state law claims itself than to remand them to a state court and because the
duplication of effort would have been needless and unreasonable. As a result, it
would have been uneconomical, inconvenient, and unnecessary to remand the state
law claims to the Alaska courts. Id. at 353.
As Melton did not address the merits of his state law claims under Alaska
Statute (“AS”) § 14.18.100(b) and the Alaska Human Rights Act (“AHRA”), AS §
18.80.220, in his opposition to the motion for summary judgment in the district
court, he has forfeited these claims. See Padgett v. Wright, 587 F.3d 983, 985 n.2
(9th Cir. 2009) (per curiam). Moreover, Melton has waived his argument
regarding AS § 18.80.230 because he failed to raise this argument below.
To the extent that he might not have forfeited any of those claims, we find
the arguments raised in his opening brief unpersuasive. AS § 18.80.220, which
prohibits “an employer” from discriminating against employees or applicants on
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the basis of race or sex, does not apply to Melton’s action because the ACC was
his school, not his employer. Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 43 (Alaska
2000). Furthermore, AS § 18.80.230 forbids places of “public accommodation”
from denying services to a person on account of some prohibited characteristics
such as race, sex, and religion, but the ACC is not a place of public
accommodation. This is because: (1) the ACC does not serve the general public;
and (2) the canon of noscitur a sociis—“a word is known by the company it
keeps,” Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 575 (1995)—demonstrates
that the AHRA’s list of public accommodations typically concerns commercial
transactions for some tangible products or services pertaining to nourishment,
amusement, transportation and other corporeal matters. In contrast, the ACC
provides a service whose primary purpose is educational.
As Melton has not established that the district court abused its discretion in
denying his motion to compel and exercising supplemental jurisdiction over the
state law claims, the district court’s judgment is AFFIRMED.
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