                                                                           FILED
                                                                            JAN 09 2019
                           NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


RICHARD SKINNER,                                 No.    17-56060

              Plaintiff-Appellant,               D.C. No.
                                                 2:16-cv-03136-PSG-FFM
 v.

LOUISVILLE LADDER, INC., DBA                     MEMORANDUM*
Davidson Ladders, Inc. and DOES, 1-50,
inclusive,

              Defendants-Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                     Argued and Submitted December 5, 2018
                              Pasadena, California

Before: O’SCANNLAIN and IKUTA, Circuit Judges, and STEEH,** District
Judge.

      Richard Skinner appeals the district court’s order dismissing this case for

lack of standing. We affirm.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable George Caram Steeh III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
      Because the district court considered matters outside the pleadings in

granting Louisville Ladder, Inc.’s motion to dismiss, the motion is treated as one

for summary judgment. See Mayer v. Wedgewood Neighborhood Coal., 707 F.2d

1020, 1021–22 (9th Cir. 1983) (per curiam); see also Olsen v. Idaho State Bd. of

Med., 363 F.3d 916, 921–22 (9th Cir. 2004). The district court did not err in

failing to adhere to formal notice requirements, see Fed. R. Civ. P. 56, because

Skinner was fairly apprised that the district court would consider materials beyond

the pleadings, as evidenced by his inclusion of such extraneous materials in his

opposition to that motion, see Olsen, 363 F.3d at 922, and was also given an

adequate opportunity to respond and to supplement the record (and did so with

affidavits and evidence, all without disputing his lack of standing), see San Pedro

Hotel Co. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998).

      The district court did not err in granting Louisville’s motion because there

was no genuine issue of material fact that Skinner lacked prudential standing to

pursue his claims. Because Skinner’s bankruptcy filing transferred the claims

asserted here to his bankruptcy estate and Skinner failed to disclose the claims on

the relevant bankruptcy schedules, they “continue[] to belong to the bankruptcy

estate and did not revert to” Skinner at the closing of his bankruptcy case. See

Cusano v. Klein, 264 F.3d 936, 945–46 (9th Cir. 2001); see also 11 U.S.C.


                                          2
§ 541(a). Given that the trustee of the bankruptcy estate did not abandon these

claims, and in fact pursued a settlement of them with Louisville, the estate

remained the real party in interest. See Turner v. Cook, 362 F.3d 1219, 1225–26

(9th Cir. 2004).

      The district court did not abuse its discretion in denying Skinner’s motion

for a continuance given that Skinner was not diligent, had an opportunity to

respond to Louisville’s motion, and failed to indicate he could have cured his

standing deficiency in light of the bankruptcy trustee’s expressed intent not to

abandon the claims. See United States v. 2.61 Acres of Land, 791 F.2d 666,

671–72 (9th Cir. 1985) (per curiam).1

AFFIRMED.




      1
       Because we decide on these grounds, we do not consider whether Skinner
should be judicially estopped from bringing these claims under Ah Quin v. County
of Kauai Department of Transportation, 733 F.3d 267 (9th Cir. 2013).
                                          3
