                            NOT FOR PUBLICATION                             FILED
                     UNITED STATES COURT OF APPEALS                          JUN 30 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

DAVID M. CURLEY, Sr.,                             No.    15-16695

                 Plaintiff-Appellant,             D.C. No. 3:13-cv-03805-NC

 v.
                                                  MEMORANDUM*
WELLS FARGO & COMPANY; et al.,

                 Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Northern District of California
                 Nathanael M. Cousins, Magistrate Judge, Presiding

                        Argued and Submitted May 19, 2017
                             San Francisco, California

Before: SCHROEDER and MURGUIA, Circuit Judges, and MCCALLA,**
District Judge.

      David M. Curley, Sr. appeals the district court’s grant of summary judgment

to defendants in his action alleging breach of contract and fraud. Curley argues the

district court failed to consider late-filed evidence that created a dispute as to



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jon P. McCalla, United States District Judge for the
Western District of Tennessee, sitting by designation.
whether Curley properly accepted the Trial Period Plan (“TPP”) offer by

submitting all required materials for his loan modification application to

defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the

grant of summary judgment de novo, Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.

2000) (en banc), we affirm.

      1. We review for abuse of discretion the district court’s exclusion of late-

filed evidence in granting summary judgment. Carpenter v. Universal Star

Shipping, S.A., 924 F.2d 1539, 1547 (9th Cir. 1991). At the district court,

defendants moved for summary judgment and argued that Curley failed to file an

IRS 4506-T form as required by the TPP offer. Curley’s counsel submitted

evidence and a declaration on this issue a day after the district court’s deadline.

The district court did not abuse its discretion by excluding Curley’s late-filed

evidence and declaration because there was no good cause for late filing.

      2. Based on the evidence the district court considered, no genuine dispute of

material fact remains as to whether Curley filed an IRS 4506-T form within the

deadline to accept the TPP offer. We also find the district court did not abuse its

discretion in entertaining a second motion for summary judgment. Hoffman v.

Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010).

      3. Finally, defendants request dismissal of the appeal because of Curley’s

inadequate excerpts of record. “As with briefing inadequacies, the failure to


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present a sufficient record can itself serve as a basis for summary affirmance.”

Cmty. Commerce Bank v. O’Brien (In re O’Brien), 312 F.3d 1135, 1137 (9th Cir.

2002). Though we exercise our discretion by not dismissing on this ground, we

note that Curley had no justification for failing to comply with Ninth Circuit Rules.

      AFFIRMED.




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