                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 18 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BESTWAY (USA), INC.; et al.,                    Nos. 18-16228
                                                     18-17040
                Plaintiffs-Appellees,
                                                D.C. No. 4:17-cv-00205-HSG
 v.

LEONARD GREGORY SCOTT; EUREKA                   MEMORANDUM*
INVENTIONS LLC,

      Defendants-cross-claimants-
      Appellees,

PIETRO PASQUALE-ANTONI SGROMO,

                Defendant-Appellant,

and

WAGMORE & BARKLESS LLC,

                Defendant.


BESTWAY (USA), INC.; et al.,                    No.    19-15709

                Plaintiffs-Appellees,           D.C. No. 4:17-cv-00205-HSG

 v.

PIETRO PASQUALE-ANTONI SGROMO,

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
              Defendant-Appellant,

and

WAGMORE & BARKLESS LLC,

              Defendant,

EUREKA INVENTIONS LLC; LEONARD
GREGORY SCOTT,

              Defendants-cross-claimants.


BESTWAY (USA), INC.; et al.,                No.    19-15797

              Plaintiffs-Appellees,         D.C. No. 4:17-cv-00205-HSG

 v.

PIETRO PASQUALE-ANTONI SGROMO,

              Defendant-Appellant,

and

WAGMORE & BARKLESS LLC; et al.,

              Defendants.

               Appeals from the United States District Court
                  for the Northern District of California
              Haywood S. Gilliam, Jr., District Judge, Presiding

                       Submitted December 11, 2019**


      **
           The panel unanimously concludes these cases are suitable for decision

                                      2                                  18-16228
Before:      WALLACE, CANBY, and TASHIMA, Circuit Judges.

      In these consolidated appeals, Pietro Pasquale-Antoni Sgromo appeals pro se

from the district court’s summary judgment and orders in this diversity jurisdiction

interpleader action. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

      The district court properly denied Sgromo’s motion to compel arbitration

because appellees demonstrated Sgromo waived his right to arbitration. See

Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1259 (9th Cir. 2017) (standard of

review); Martin v. Yasuda, 829 F.3d 1118, 1123-24 (9th Cir. 2016) (whether a

party has waived its right to arbitration is a matter “for judicial determination

unless the parties clearly and unmistakably provide otherwise”; waiver requires

“knowledge of an existing right to compel arbitration,” “acts inconsistent with that

existing right,” and “prejudice to the party opposing arbitration” (citations and

internal quotation marks omitted)).

      Because Sgromo failed to oppose cross-claimants’ motion for summary

judgment, plaintiffs’ motion for a preliminary injunction, and plaintiffs’ motion for

attorneys’ fees and costs, we do not consider Sgromo’s challenge to the district

court’s disposition of those motions. See Alaska Airlines, Inc. v. United Airlines,

Inc., 948 F.2d 536, 546 n.15 (9th Cir. 1991) (“It is well established that an



without oral argument. See Fed. R. App. P. 34(a)(2).

                                           3                                    18-16228
appellate court will not reverse a district court on the basis of a theory that was not

raised below.”); see also Novato Fire Prot. Dist. v. United States, 181 F.3d 1135,

1141 n.6 (9th Cir. 1999) (failure to raise issue at summary judgment waives right

to raise issue on appeal). We do not consider matters not specifically and distinctly

raised and argued in the opening brief, or arguments and allegations raised for the

first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      Sgromo’s motion to file an oversized reply brief is granted. The Clerk will

file the oversized brief submitted at Docket Entry No. 62 in No. 18-16228; Docket

Entry No. 39 in No. 18-17040; Docket Entry No. 33 in No. 19-15709; and Docket

Entry No. 29 in No. 19-15797.

      Appellees’ motion to seal is granted. The Clerk will maintain under seal

appellees’ supplemental excerpts of record, volume IV.

      AFFIRMED.




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