NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 4 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES C. HILLIARD, No. 20-35002

Plaintiff-Appellant, D.C. No. 1:18-cv-00232-DCN

v.

MEMORANDUM*

MURPHY LAND COMPANY, LLC, an Idaho Limited Liability Company,

Defendant-Appellee.

Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding

Submitted February 1, 2021** Seattle, Washington

Before: GRABER, McKEOWN, and PAEZ, Circuit Judges.

James Hilliard appeals the district court’s grant of summary judgment for

Murphy Land Company, LLC. Hilliard had an option to buy Crystal Hills Farm

from Murphy Land, but Murphy Land sold the property to someone else when the

* 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). option expired. Hilliard then sued, seeking a declaration that he had exercised his

option in time. The district court concluded that, even if Hilliard had exercised the

option, the case was moot because the district court could not change the

ownership of the property given that it was no longer owned by Murphy Land. We

review the grant of summary judgment de novo, Sandoval v. Cnty. of Sonoma, 912

F.3d 509, 515 (9th Cir. 2018), and affirm.

Although Hilliard contends that the case would not have become moot if he

had been permitted to amend his complaint, in fact Hilliard did not seek to amend

his complaint. The error, he argues, is that the district court did not sua sponte

construe parts of his summary judgment brief as a motion to amend. The problem

is that at the summary judgment hearing, Hilliard told the district court that he was

not moving to amend his complaint and that he would do so only after resolution of

the motion. Understandably, the district did not treat his brief as a motion to

amend.

Hilliard maintains that courts have an absolute duty to treat new arguments

raised in a brief as motions to amend. But we have held that “summary judgment

is not a procedural second chance to flesh out inadequate proceedings.” Wasco

Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (internal

quotation marks omitted). We have also more than once affirmed a district court’s

decision not to consider new issues and claims in the briefing as a motion to

2 amend. See, e.g., Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963 (9th Cir.

2006); 389 Orange St. Partners v. Arnold, 179 F.3d 656 (9th Cir. 1999). And

where we have reversed a district court for not treating new claims raised in a brief

as a motion to amend, we have not done so when, as here, the party specifically

indicated that it was not seeking to amend until after resolution of the motion. See

Desertrain v. City of Los Angeles, 754 F.3d 1147 (9th Cir. 2014); Kobold v. Good

Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1038 n.4 (9th Cir. 2016); Edwards v.

Occidental Chem. Corp., 892 F.2d 1442, 1445 n.2 (9th Cir. 1990).

The district court therefore did not abuse its discretion in declining to

consider the new claims as a motion to amend. Cf. 3 MOORE’S FEDERAL

PRACTICE § 15.14 (2017) (“[I]t is not an abuse of discretion for the court to fail

to grant leave to amend when leave was not sought.”). Hilliard’s derivative

arguments that Federal Rule of Civil Procedure 15 applies and that the case was

not moot likewise fail.

The district court concluded that, if Hilliard moved to amend after summary

judgment, the motion would fail. A party may amend after the scheduling deadline

only with “good cause,” Fed. R. Civ. P. 16, and the central inquiry is “whether the

requesting party was diligent in seeking the amendment.” DRK Photo v. McGraw-

Hill Global Educ. Holdings, LLC, 870 F.3d 978, 989 (9th Cir. 2017).

The district court did not abuse its discretion in finding that Hilliard was not

3 diligent, because he did not timely move to amend even though he had “both

constructive and actual notice before discovery closed that the relief he was

seeking was moot.” Hillard’s claim that he did not have constructive notice is

beside the point because it is undisputed that Hilliard had actual notice. Indeed,

despite having notice of the sale since Murphy Land’s Answer a month into the

litigation, Hilliard did not timely move to amend, did not move to extend the

deadline to amend, and did not move for a continuance of the summary judgment

motions in order to assert new claims.

Because we affirm the district court’s judgment, we also affirm its award of

attorneys’ fees to Murphy Land. See 389 Orange St. Partners, 179 F.3d at 666.

Murphy Land’s request for attorneys’ fees on appeal may be addressed through

Ninth Circuit Rule 39-1.

AFFIRMED.

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