MCILWAIN v. BROWN (2021)

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

Summary · law.co

Holding. The court affirmed the district court's judgment dismissing McIlwain's action, finding that McIlwain waived review of both the dismissal on procedural grounds and the denial of leave to amend by failing to raise specific arguments in his appellate brief.

Timothy McIlwain, representing himself, appealed a district court's dismissal of his diversity lawsuit against James Brown. The appellate court examined whether to review the dismissal on its merits but found that McIlwain had forfeited several grounds for appeal by failing to raise them properly in his briefing. Specifically, McIlwain did not challenge the district court's independent basis for dismissal—that he had violated local rules by failing to timely file opposition papers to the motion to dismiss. Additionally, McIlwain provided no arguments regarding the court's denial of his request to amend his complaint, thereby waiving appellate review of that issue as well.

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

Key issues

Waiver of appellate review for arguments not raised in opening brief
Failure to comply with local rules regarding timely opposition to motion to dismiss
Denial of leave to amend complaint

Procedural posture

McIlwain appealed pro se from a district court judgment dismissing his diversity action, and the appellate court reviewed whether to address the underlying grounds for dismissal.

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.