                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 17 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CHARLES H. THOMAS, an individual                 No. 13-56737
and LLOYD WAITE, Jr.,
                                                 D.C. No. 2:12-cv-00822-DSF-OP
              Plaintiffs - Appellants,

 v.                                              MEMORANDUM*

FEDEX FREIGHT, INC., an Arkansas
Corporation, as successor in interest to
Fedex National LTL and FEDEX
CORPORATION, a Delaware
Corporation,

              Defendants - Appellees.


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

                     Argued and Submitted December 9, 2015
                              Pasadena, California

Before: REINHARDT, FISHER, and NGUYEN, Circuit Judges.

      Lloyd Waite, Jr. and Charles Thomas bring this action against Fedex Freight,

Inc., claiming race discrimination and retaliation, respectively, under federal and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
California law. The district court denied Thomas leave to amend his complaint and

then later granted summary judgment against both Waite and Thomas in favor of

Fedex. We affirm.

      Waite argues that the district court erred in granting summary judgment because

it should have granted a second continuance under Federal Rule of Civil Procedure

56(d) so that he could discover additional information before a summary judgment

decision. Because he already received the data that he claimed to need, though, the

district court did not abuse its discretion in denying a second continuance. Waite’s

remaining evidence does not establish a triable issue of pretext. We therefore affirm

summary judgment as to Waite. See Fed. R. Civ. P. 56(a).

      As to Thomas, we have jurisdiction to review the district court’s order denying

leave to amend because he manifestly intended to appeal from the judgment, and non-

final orders “merge with the judgment.” Hall v. City of Los Angeles, 697 F.3d 1059,

1070 (9th Cir. 2012); see Foman v. Davis, 371 U.S. 178, 181 (1962) (“It is . . . entirely

contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the

merits to be avoided on the basis of such mere technicalities.”). Because Thomas

failed to establish good cause for waiting until well after the scheduling order deadline

to move to amend the complaint, the district court did not abuse its discretion in

denying him leave to amend the complaint. See Fed R. Civ. P. 16(b)(4); Johnson v.

Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). On the merits of his
claim, Thomas does not rely on the statutory provisions listed in the complaint, and

he devotes only one sentence of his reply brief to challenging the district court’s ruling

that he could not rely on statutory provisions outside the complaint. Such perfunctory

treatment is insufficient to preserve the issue on appeal. See United States v. Alonso,

48 F.3d 1536, 1544-45 (9th Cir. 1995). We therefore affirm summary judgment as

to Thomas.

             AFFIRMED.
