MCILWAIN v. BROWN (2021)

United States Court of Appeals, Ninth Circuit.2021-08-06No. No. 20-55424

Summary · law.co

Holding. The appellate court affirmed the district court's judgment dismissing McIlwain's lawsuit, finding that he waived review of the dismissal and the denial of leave to amend by failing to present specific arguments on these issues in his opening brief.

Timothy McIlwain, representing himself, appealed a district court's dismissal of his diversity lawsuit against James Brown. The appellate court examined whether it should review the dismissal and found that McIlwain had not raised specific challenges to the district court's reasoning in his opening brief. Because McIlwain failed to argue against the dismissal on the merits and also did not address the court's denial of permission to file an amended complaint, he forfeited appellate review of those issues.

The court noted that McIlwain could have contested the dismissal based on his failure to timely file opposition papers under local court rules, but he did not raise this argument on appeal. Additionally, his briefing contained no substantive argument regarding why the district court erred in refusing to allow him to amend his complaint. Under appellate procedure rules, parties must specifically present their arguments to preserve them for review.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Waiver of appellate review through failure to argue issues in opening brief
Effect of noncompliance with local court rules on dismissal grounds
Standards for reviewing denial of leave to amend on appeal

Procedural posture

McIlwain appealed pro se from a district court judgment dismissing his diversity action, and the appellate court reviewed whether it had jurisdiction and whether McIlwain had preserved his arguments for appeal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Timothy McIlwain, an attorney, appeals pro se from the district courts judgment dismissing his diversity action against James Brown. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

McIlwain does not challenge—and has therefore waived review of—the district courts dismissal of his lawsuit on the independent, alternative ground that he failed to timely oppose dismissal in violation of the Central District of Californias local rules. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (declining to consider matters “not specifically and distinctly raised” in an opening brief (citation omitted)); see also C.D. Cal. R. 7-9 (setting forth deadline for opposition papers), 7-12 (providing that failure to timely oppose motion is ground for granting motion); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (“Failure to follow a district courts local rules is a proper ground for dismissal.”).

We likewise decline to review the district courts denial of leave to amend because McIlwains briefing on appeal lacks any argument on that issue. See Nev. Dept of Corr. v. Greene, 648 F.3d 1014, 1020 (9th Cir. 2011) (concluding that a pro se appellant waived issues not supported by argument in opening brief).

AFFIRMED.