Sport Collectors Guild, Inc. v. Bank of America, Na ( 2021 )

FILED
NOT FOR PUBLICATION
NOV 29 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SPORT COLLECTORS GUILD, INC.; No. 21-15041
PATRICE LAGNIER,
D.C. No. 2:19-cv-04573-MTL
Plaintiffs-Appellants,
v. MEMORANDUM*
BANK OF AMERICA, NA,
Defendant-Appellee,
and
SMALL BUSINESS
ADMINISTRATION;
UNITED STATES OF AMERICA,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Submitted November 17, 2021**
Phoenix, Arizona
*
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).
Before: CLIFTON, MURGUIA, and BRESS, Circuit Judges.
Plaintiffs Sport Collectors Guild, Inc. and Patrice Lagnier appeal the district
court’s granting of defendant Bank of America, NA’s (“BANA”) motion to
dismiss, challenging solely the district court’s earlier decision to allow BANA an
extension of time to file a responsive pleading. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
Even assuming that the excusable neglect standard was not applied and that
the motion would have been denied if it had been, “[a]t every stage of the
proceeding, the court must disregard all errors and defects that do not affect any
party’s substantial rights.” Fed. R. Civ. P. 61. This principle applies with equal
force to appellate review. McDonough Power Equip., Inc. v. Greenwood, 464 U.S.
548, 554 (1984). After granting the extension motion, the district court went on to
dismiss the plaintiffs’ claims as meritless, and the plaintiffs have not appealed that
decision. As such, they have waived any argument that their complaint had merit.
Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d 1146, 1148 (9th Cir. 2016).
Indeed, the district court held that the plaintiffs lacked standing to bring the
fraudulent concealment claim. As the plaintiffs have not appealed this holding,
they have waived any argument that they in fact have standing. NEI Contracting &
2
Eng’g, Inc. v. Hanson Aggregates Pac. Sw., Inc., 926 F.3d 528, 533 (9th Cir.
2019). This deficiency compelled the court to dismiss the claim against BANA and
would have required this outcome regardless of when, if ever, standing was raised.
San Francisco Drydock, Inc. v. Dalton, 131 F.3d 776, 778 (9th Cir. 1997)
(explaining that courts are obligated to ensure standing exists and to raise it sua
sponte “if need be”); Ctr. For Biological Diversity v. Kempthorne, 588 F.3d 701,
707 (9th Cir. 2009) (“[T]he jurisdictional issue of standing can be raised at any
time.”). As such, the outcome of this case would have been the same had the
extension motion been evaluated differently—it would have been dismissed—and
the plaintiffs cannot show they were prejudiced.
Moreover, the Federal Rules of Civil Procedure are undergirded by a strong
presumption in favor of deciding cases on the merits. NewGen, LLC v. Safe Cig,
LLC, 840 F.3d 606, 616 (9th Cir. 2016); United States v. Signed Pers. Check No.
730 of Yubran S. Mesle, 615 F.3d 1085, 1089 (9th Cir. 2010). That is precisely
what happened here.
We note that pursuing default after a brief, nonprejudicial delay, while in
litigation with the same defense counsel in a different case and doing so after the
defendants sought an extension, betokens a degree of gamesmanship in the
plaintiff’s approach to this meritless lawsuit of the type this court has condemned.
3
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9th Cir. 2010)
(disapproving of “hardball tactics designed to avoid resolution of the merits of
th[e] case”). “Where, as here, there is no indication of bad faith, prejudice, or
undue delay, attorneys should not oppose reasonable requests for extensions of
time brought by their adversaries.” Id.AFFIRMED.
4