Pankey

MEMORANDUM *

Dana Pankey sued the City of Bakersfield for breach of oral contract in connection with a failed HUD-funded rehabilitation project. Following a bench trial, the district court found the City liable for breach of contract but found that Pankey was not entitled to damages. Pankey appeals the decision to award no damages.

Pankey’s appeal is fundamentally misconceived. He asserts error regarding the percentage of lost profits to which he is entitled, but he does not assert error in the district court’s finding that the total lost profits were zero. Because he does not assert these challenges in his opening brief, he has waived these claims. See Shwarz v. United States, 234 F.3d 428 , 434 n. 4 (9th Cir.2000). Regardless of whether he prevails on the issues he appeals, therefore, Pankey is entitled to no recovery on the challenges he makes.

Pankey first challenges the district court’s decision to consider evidence on the issue of who owned the motel. A trial court may amend the pre-trial order to prevent manifest injustice. Fed. R.Civ.P. 16(e). Its decision to grant a motion to amend the pre-trial order is reviewed for an abuse of discretion. See Miller v. Safeco Title…