Bestway (usa), Inc.; v. Leonard Gregory Scott; Eureka Inventions LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BESTWAY (USA), INC.; et al.,
Plaintiffs-Appellees,
v.
LEONARD GREGORY SCOTT; EUREKA
INVENTIONS LLC,
Defendants-cross-claimants-
Appellees,
PIETRO PASQUALE-ANTONI SGROMO,
Defendant-Appellant,
and
WAGMORE & BARKLESS LLC,
Defendant.
Nos. 18-16228
18-17040
D.C. No. 4:17-cv-00205-HSG
MEMORANDUM*
BESTWAY (USA), INC.; et al.,
Plaintiffs-Appellees,
v.
PIETRO PASQUALE-ANTONI SGROMO,
No. 19-15709
D.C. No. 4:17-cv-00205-HSG
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Defendant-Appellant,
and
WAGMORE & BARKLESS LLC,
Defendant,
EUREKA INVENTIONS LLC; LEONARD
GREGORY SCOTT,
Defendants-cross-claimants.
BESTWAY (USA), INC.; et al.,
Plaintiffs-Appellees,
v.
PIETRO PASQUALE-ANTONI SGROMO,
Defendant-Appellant,
and
WAGMORE & BARKLESS LLC; et al.,
Defendants.
No. 19-15797
D.C. No. 4:17-cv-00205-HSG
Appeals from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Submitted December 11, 2019**
** The panel unanimously concludes these cases are suitable for decision

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Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.
In these consolidated appeals, Pietro Pasquale-Antoni Sgromo appeals pro se
from the district court’s summary judgment and orders in this diversity jurisdiction
interpleader action. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
The district court properly denied Sgromo’s motion to compel arbitration
because appellees demonstrated Sgromo waived his right to arbitration. See
Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1259 (9th Cir. 2017) (standard of
review); Martin v. Yasuda, 829 F.3d 1118, 1123-24 (9th Cir. 2016) (whether a
party has waived its right to arbitration is a matter “for judicial determination
unless the parties clearly and unmistakably provide otherwise”; waiver requires
“knowledge of an existing right to compel arbitration,” “acts inconsistent with that
existing right,” and “prejudice to the party opposing arbitration” (citations and
internal quotation marks omitted)).
Because Sgromo failed to oppose cross-claimants’ motion for summary
judgment, plaintiffs’ motion for a preliminary injunction, and plaintiffs’ motion for
attorneys’ fees and costs, we do not consider Sgromo’s challenge to the district
court’s disposition of those motions. See Alaska Airlines, Inc. v. United Airlines,
Inc., 948 F.2d 536, 546 n.15 (9th Cir. 1991) (“It is well established that an
without oral argument. See Fed. R. App. P. 34(a)(2).

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appellate court will not reverse a district court on the basis of a theory that was not
raised below.”); see also Novato Fire Prot. Dist. v. United States, 181 F.3d 1135,
1141 n.6 (9th Cir. 1999) (failure to raise issue at summary judgment waives right
to raise issue on appeal). We do not consider matters not specifically and distinctly
raised and argued in the opening brief, or arguments and allegations raised for the
first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Sgromo’s motion to file an oversized reply brief is granted. The Clerk will
file the oversized brief submitted at Docket Entry No. 62 in No. 18-16228; Docket
Entry No. 39 in No. 18-17040; Docket Entry No. 33 in No. 19-15709; and Docket
Entry No. 29 in No. 19-15797.
Appellees’ motion to seal is granted. The Clerk will maintain under seal
appellees’ supplemental excerpts of record, volume IV.
AFFIRMED.

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