                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               APR 7 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JACK BUCKHORN; et al.,                           No.   19-15342

              Plaintiffs-Appellees,              D.C. No. 3:15-cv-04352-TSH

 v.
                                                 MEMORANDUM*
MARLON EUGENE HETTINGER, DBA
Hettinger Electric, individually,

              Defendant-Appellant.


                   Appeal from the United States District Court
                     for the Northern District of California
                  Thomas S. Hixson, Magistrate Judge, Presiding

                            Submitted March 27, 2020**
                             San Francisco, California

Before: GOULD and CHRISTEN, Circuit Judges, and LASNIK,*** District Judge.




      *
             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).
      ***
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
      Appellant Marlon Eugene Hettinger, individually and doing business as

Hettinger Electric (Hettinger), appeals the district court’s order granting summary

judgment and attorneys fees to Plaintiffs-Appellees (Plaintiffs). Plaintiffs-

Appellees are Jack Buckhorn and Anisa M. Thomsen, trustees of the Redwood

Empire Electrical Workers Health and Welfare Trust Fund and other named trust

funds (Trustees), and Fregoso Builders, Inc. (Fregoso). We review de novo the

district court’s decision to grant summary judgment. See, e.g., Branch Banking &

Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017). We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we reverse and remand. Because the parties are

familiar with the facts, we recite only those necessary to resolve the issues on

appeal.

      Hettinger contends that the district court erred by granting Plaintiffs’ motion

for summary judgment because Plaintiffs did not allege the state law breach of

contract claim in the pleadings. We agree.

      “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to

‘give the defendant fair notice of what the ... claim is and the grounds upon which

it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in

original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, federal


                                           2
notice pleading standards do not relieve Plaintiffs of the basic obligation to

articulate a cause of action. Plaintiffs’ amended complaints1 refer to Fregoso’s

assignment of its “rights” to pursue recovery against Hettinger, but nowhere

describe the nature of these rights or articulate the legal theory for the assigned

claim—breach of the subcontract between Fregoso and Hettinger. Nor does the

Settlement Agreement attached to the first amended complaint state the nature of

the assigned claim. Moreover, the pleadings do not assert the additional

jurisdictional support needed for the assigned claim, which arises under state law.

See Fed. R. Civ. P. 8(a)(1) (requiring “a short and plain statement of the grounds

for the court’s jurisdiction, unless the court already has jurisdiction and the claim

needs no new jurisdictional support”). Significantly, before the case was

reassigned to the magistrate judge at the summary judgment stage, the district court

judge dismissed Hettinger’s pro se counterclaim precisely because Hettinger did

not clearly articulate the legal basis for his claims.

      It is impermissible to add a new claim at the summary judgment stage. See

Echlin v. PeaceHealth, 887 F.3d 967, 977–78 (9th Cir. 2018). Because Plaintiffs


      1
         The magistrate judge considered both Plaintiffs’ first and second amended
complaints in addressing the motion for summary judgment, but it is unclear from
our review of the docket whether the second amended complaint was ever accepted
for filing by the court. Whether the first or second complaint was operative
changes neither our analysis nor the outcome here.
                                            3
articulated the state law breach of contract claim for the first time at the summary

judgment stage rather than seeking to amend the pleadings, the district court erred

in granting Plaintiffs’ motion for summary judgment.

      Because we conclude that Plaintiffs did not plead the state law breach of

contract claim, we do not reach Hettinger’s contentions that the district court erred

in exercising supplemental jurisdiction over the claim and in determining there was

no genuine dispute as to any material fact remaining with regard to the claim.

      We reverse the grant of summary judgment to Trustees and Fregoso, vacate

the award of attorneys fees, and remand to the district court for proceedings

consistent with this decision. If the district court grants Plaintiffs leave to amend

the pleadings, Hettinger must be provided an opportunity to respond. See Fed. R.

Civ. P. 15(a).

      REVERSED and REMANDED.




                                           4
