                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 THEODORE H. HEINEMANN, I,                         No. 12-35404
             Plaintiff-Appellant,
                                                    D.C. No.
                     v.                        2:12-cv-00125-RSL

 DANIEL SATTERBERG,
 King County Prosecutor,                             OPINION
             Defendant-Appellee.


         Appeal from the United States District Court
           for the Western District of Washington
          Robert S. Lasnik, District Judge, Presiding

                   Argued and Submitted
            August 27, 2013—Seattle, Washington

                    Filed September 24, 2013

  Before: M. Margaret McKeown and Richard R. Clifton,
    Circuit Judges, and Jed S. Rakoff, District Judge.*

                     Opinion by Judge Clifton




  *
    The Honorable Jed S. Rakoff, District Judge for the Southern District
of New York, sitting by designation.
2                  HEINEMANN V. SATTERBERG

                           SUMMARY**


                  Civil Rights/Civil Procedure

    The panel affirmed the district court’s summary judgment
in a civil action brought by an airline passenger against the
Prosecuting Attorney for King County who had filed a
criminal complaint against the passenger for an altercation
that occurred on a United Airlines flight between the
passenger and two flight attendants.

    The panel first held that Federal Rule of Civil Procedure
56, in its current form, prohibits a district court from granting
a motion for summary judgment by default based upon a local
court rule when an opposing party fails to respond. The panel
held that because the local rule at issue in this case, Western
District of Washington Rule 7(b)(2), conflicted with Rule 56,
it could not provide a valid basis for granting a motion for
summary judgment. The panel nevertheless affirmed the
district’s grant of summary judgment on the merits, holding
that the King County Prosecuting Attorney was entitled to
prosecutorial immunity for his decision to initiate the
prosecution against plaintiff.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                HEINEMANN V. SATTERBERG                       3

                         COUNSEL

Justin Price Wade (argued), Michael Barr King, Carney
Badley Spellman, P.S., Seattle, Washington, for Plaintiff-
Appellant.

David Eldred, King County Prosecuting Attorney’s Office,
Seattle, Washington, for Defendant-Appellee.


                          OPINION

CLIFTON, Circuit Judge:

    This appeal presents the question of whether Federal Rule
of Civil Procedure 56, in its current form, prohibits a district
court from granting a motion for summary judgment by
default based upon a local court rule when an opposing party
fails to respond. We conclude that it does.

    In this case, in addition to citing such a local rule, the
district court considered the motion on the merits and
concluded that it should be granted. We agree and affirm the
judgment.

I. Background

    Theodore Heinemann was a passenger aboard a United
Airlines flight from Amsterdam to Seattle via Chicago. Near
the end of the flight, Heinemann was involved in an
altercation with two flight attendants. Heinemann and the
flight attendants told very different stories about the episode.
4               HEINEMANN V. SATTERBERG

    Heinemann alleged that he suffered a mild epileptic
seizure just minutes prior to landing in Seattle, and that a
flight attendant denied him access to the bathroom in this
“emergency medical situation.” He further contended that as
he was disembarking after his seizure, another flight attendant
followed him out of the airplane “brandishing” an ice mallet.
The flight attendants denied that Heinemann said anything
about a seizure and instead stated that his strongly worded
complaints about the airline’s customer service escalated into
profanity and a physical threat.

    Heinemann was arrested by the Port of Seattle Police
Department when he got off the plane. A criminal complaint
was later filed in state court charging Heinemann with
harassment. The complaint was filed officially by the
Prosecuting Attorney of King County, defendant Daniel
Satterberg, and was actually signed by one of his deputy
prosecuting attorneys.

    A few months after he was criminally charged,
Heinemann, proceeding pro se, initiated a civil action against
United Airlines in state court, alleging that its personnel
falsified police reports, falsely diagnosed an epileptic seizure,
and threatened him with an ice mallet, among other things.
United removed the case to district court on the basis of
diversity, and moved for summary judgment. Reasoning that
the Montreal Convention of 1999 precluded Heinemann from
pursuing state law claims against United because the incident
occurred on an “international carriage,” and that Heinemann
had no claims under the Convention itself, the district court
granted United’s summary judgment motion.

    Heinemann then filed the current action against Satterberg
in district court, again proceeding pro se. He contended that
                 HEINEMANN V. SATTERBERG                      5

the King County prosecutor had no jurisdiction to file a
criminal complaint against him. In his complaint, Heinemann
argued that because he could not “claim damages from
United Airlines because of the [M]ontreal [C]onvention in a
state court[,] . . . . a state court may not prosecute Heinemann
for a[n] incident that occurred on that inter[national]
flight . . . .”

     Satterberg moved for summary judgment, arguing that
(1) the Montreal Convention did not preclude criminal actions
based on state law; (2) Satterberg did not personally
participate in any deprivation of Heinemann’s constitutional
rights, as would be required to establish his liability for any
claim under 28 U.S.C. § 1983; and (3) Satterberg’s decision
to file a criminal complaint against Heinemann in state court
was protected by absolute prosecutorial immunity.

    Heinemann did not file any response to the motion, which
the district court subsequently granted. In its short order, the
district court explained: “Plaintiff has not opposed the
motion, and the Court considers such a failure to be an
‘admission that the motion has merit.’ Local Civil Rule
7(b)(2). The Court has also reviewed the motion on its merits
and finds that dismissal is appropriate.”

   Heinemann did not file anything further in the district
court. Instead, he appealed to this court.

II. Discussion

   District courts may promulgate their own local rules so
long as those rules comport with the Federal Rules of Civil
Procedure. Fed. R. Civ. P. 83(a)(1). This court determines de
novo whether there is a conflict between a local rule and a
6               HEINEMANN V. SATTERBERG

Federal Rule. See, e.g., Marshall v. Dates, 44 F.3d 722, 725
(9th Cir. 1995). We also review de novo the merits of a grant
of summary judgment. Knox v. Sw. Airlines, 124 F.3d 1103,
1105 (9th Cir. 1997).

    A. Summary Judgment by Default under a Local Rule

     Satterberg argues that the district court properly relied on
the local rule sanctioning summary judgment by default.
Heinemann argues that under the Federal Rules, a motion for
summary judgment may not be granted based on a failure to
file an opposition to the motion, regardless of any local rule
that suggests the contrary. We agree with Heinemann.

    In its order, the district court cites Western District of
Washington Local Rule 7(b)(2), which states that “[i]f a party
fails to file papers in opposition to a motion, such failure may
be considered by the court as an admission that the motion
has merit.” The local rule does not exclude a motion for
summary judgment, so by its terms it appears to permit the
court to grant a motion for summary judgment by default
whenever the opposing party fails to respond.

    Summary judgment is governed by Rule 56. Before it was
amended in 2010, Rule 56 provided that summary judgment
should be granted “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)(2) (2009). It specified that “an opposing party may not
rely merely on allegations or denials in its own pleading”
when a motion for summary judgment is “properly made and
supported,” but “must – by affidavits or as otherwise
provided in this rule – set out specific facts showing a
                HEINEMANN V. SATTERBERG                       7

genuine issue for trial. If the opposing party does not so
respond, summary judgment should, if appropriate, be entered
against that party.” Id. 56(e)(2) (2009).

    In 2010, amendments to the Rule were adopted. Under a
new section entitled “Failing to Properly Support or Address
a Fact,” the Rule now provides that “[i]f a party fails to
properly support an assertion of fact or fails to properly
address another party’s assertion of fact . . . , the court may:
(1) give an opportunity to properly support or address the
fact; (2) consider the fact undisputed for purposes of the
motion; (3) grant summary judgment if the motion and
supporting materials – including the facts considered
undisputed – show that the movant is entitled to it; or
(4) issue any other appropriate order.” Id. 56(e) (2010). As
amended, Rule 56 requires district courts to assess whether
“the motion and supporting materials” entitle the movant to
summary judgment. Id. 56(e)(3).

    Moreover, the Advisory Committee Notes regarding the
2010 revision explain that these amendments prohibit the
grant of summary judgment “by default even if there is a
complete failure to respond to the motion.” Fed. R. Civ. P. 56
Advisory Committee Notes (2010). If there is a failure to
respond, the Rule “authorizes the court to consider a fact as
undisputed.” Id. Lest this instruction be misconstrued as
condoning summary judgment by default, the Advisory
Committee Notes continue:

       Considering some facts undisputed does not
       of itself allow summary judgment. If there is
       a proper response or reply as to some facts,
       the court cannot grant summary judgment
       without determining whether those facts can
8               HEINEMANN V. SATTERBERG

       be genuinely disputed. Once the court has
       determined the set of facts – both those it has
       chosen to consider undisputed for want of a
       proper response or reply and any that cannot
       be genuinely disputed despite a procedurally
       proper response or reply – it must determine
       the legal consequences of these facts and
       permissible inferences from them.

Id. We pay attention to the Advisory Committee Notes. See
generally United States v. Vonn, 535 U.S. 55, 64 n.6 (2002)
(describing the Advisory Committee Notes as “a reliable
source of insight” on the meaning of a rule).

    In including the new subsection, the Committee stated,
the revised Rule 56 was intended to “reflect[] the ‘deemed
admitted’ provisions in many local rules.” Fed. R. Civ. P. 56
Advisory Committee Notes, supra. At the time of the
Committee’s consideration, several federal districts specified
that an opposing party’s failure to respond to the motion will
be deemed an admission of the facts as presented by the
moving party. See, e.g., D. Haw. R. 56.1(g) (1997) (“For
purposes of a motion for summary judgment, material facts
set forth in the moving party’s concise statement will be
deemed admitted unless controverted by a separate concise
statement of the opposing party.”). As the text of the 2010
rule states, the opposing party’s failure to respond to a fact
asserted in the motion permits a court to “consider the fact
undisputed for purposes of the motion.” Fed. R. Civ. P.
56(e)(2).

    The local rule at issue here, Western District of
Washington Rule 7(b)(2), is not simply a “deemed admitted”
rule. It permits the court to deem a non-movant’s failure to
                HEINEMANN V. SATTERBERG                      9

respond a complete abandonment of its opposition to
summary judgment. This is the practice that the 2010
amendments to Rule 56 sought to eliminate. Because this
local rule conflicts with the Federal Rule, it cannot provide a
valid basis for granting a motion for summary judgment.

   B. Merits of Summary Judgment in this Case

    However, the district court did not grant the motion for
summary judgment solely based on Plaintiff’s failure to
respond. Its order granting the motion also stated that the
court had reviewed the motion and granted it on its merits.

    Although the district court did not elaborate on its
reasoning regarding the merits, perhaps influenced by its
apparent authority to grant summary judgment under the local
rule based on the lack of opposition, we may affirm the
district court’s ruling on the merits “on any ground supported
by the record.” Van Asdale v. Int’l. Game Tech., 577 F.3d
989, 994 (9th Cir. 2009) (internal quotation marks omitted).

    The record is clear that Satterberg was entitled to
summary judgment. Any of the three arguments presented by
Satterberg in his motion might provide an adequate ground.
For our purposes, we will focus on prosecutorial immunity.

     As Heinemann alleges in his complaint, Satterberg is the
King County Prosecuting Attorney whose office filed a
charge against Heinemann in state court. The only
misconduct identified in Heinemann’s complaint was that
filing the criminal action was improper because the state
court lacked jurisdiction and that only federal authorities
could bring a charge against Heinemann. That is incorrect,
but for current purposes it matters only that prosecutorial
10              HEINEMANN V. SATTERBERG

immunity protects a prosecutor for “his decision to initiate a
prosecution.” Imbler v. Pachtman, 424 U.S. 409, 421–24
(1976).

    At oral argument, Heinemann’s pro bono counsel argued
that immunity did not extend to protect a prosecutor who took
action outside a traditional prosecutor’s role. See, e.g., Kalina
v. Fletcher, 522 U.S. 118, 129–31 (1997) (holding that
prosecutors are not absolutely immune when testifying about
probable cause to obtain an arrest warrant). That is true, but
Heinemann did not allege misconduct of that nature in his
complaint. He complained only about the filing of the
criminal charges. If Heinemann sought to pursue this
alternative theory, then he could have responded to the
summary judgment motion by asking for leave to amend his
complaint. If he needed more time to investigate or to obtain
evidence he could have sought a continuance under Rule
56(d). After the order was granted, he could have asked the
district court for reconsideration or relief from judgment.
Heinemann did none of these things. He did not make any
further filings in the district court.

    We affirm the district court’s grant of summary judgment
on the merits.

     AFFIRMED.
