NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRENT BAILEY; EMILY WADE, ex rel. No. 17-17530
United States of America and State of
California, D.C. No.
2:12-cv-00106-MCE-CKD
Plaintiffs-Appellants,
and MEMORANDUM*
UNITED STATES OF AMERICA; STATE
OF CALIFORNIA,
Intervenor-Plaintiffs,
v.
GATAN, INC.; ROPER INDUSTRIES,
INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted August 8, 2019**
San Francisco, California
*
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).
Before: O'SCANNLAIN, McKEOWN, and BENNETT, Circuit Judges.
Brent Bailey and Emily Wade (“Appellants”) appeal: (1) the grant of
summary judgment in favor of Gatan, Inc. and Roper Industries, Inc. (“Appellees”)
and denial of Appellants’ request to defer consideration of the summary judgment
motion pursuant to Federal Rule of Civil Procedure (“Rule”) 56(d); (2) the order
denying Appellants’ motion to modify the scheduling order; (3) the order denying
Appellants’ motion to compel discovery; and (4) the order imposing sanctions
against Appellants and their counsel. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.1
We review the district court’s grant of summary judgment de novo. See
Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1156 (9th Cir. 2001). We review
the remaining decisions challenged on appeal for abuse of discretion. See id. at
1161 n.6; Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir.
1992); Stevens v. Corelogic, Inc., 899 F.3d 666, 677 (9th Cir. 2018), cert.
denied, 139 S. Ct. 1222 (2019); Goodman v. Staples The Office Superstore, LLC,
644 F.3d 817, 822 (9th Cir. 2011). Because the facts are familiar to the parties, we
do not recite them here except as necessary.
1. In support of their motion for summary judgment, Appellees presented
evidence (or noted the lack of evidence) showing that there were no genuine
1
We deny as moot Appellees’ motion to supplement the record. [Dkt. 38]
2
disputes of fact regarding the elements of Appellants’ False Claims Act claims
under federal and California law. Appellees submitted evidence showing that no
one acting on their behalf made any material misrepresentation about x-ray
emissions related to Gatan, Inc.’s products, and they also noted the lack of
evidence of scienter. A material misrepresentation and scienter are elements of
Appellants’ False Claims Act claims. See 31 U.S.C. § 3729; Cal. Gov’t Code §
12651; Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct.
1989, 1996 (2016); State v. Altus Fin., 116 P.3d 1175, 1184 (Cal. 2005) (“[T]he
[California False Claims Act] ‘is patterned on similar federal legislation’ and it is
appropriate to look to precedent construing the equivalent federal act.” (quoting
Laraway v. Sutro & Co., 116 Cal. Rptr. 2d 823, 830 (Ct. App. 2002))). Appellants
did not oppose Appellees’ motion for summary judgment. Instead, Appellants
filed a request to defer consideration of the motion for summary judgment under
Rule 56(d).
We first conclude that the district court did not abuse its discretion in
denying Appellants’ Rule 56(d) request to defer consideration of the summary
judgment motion. While Appellants identified more discovery that they wanted to
conduct, they did not identify any specific facts that they hoped to obtain from that
discovery. Their counsel’s declaration simply stated, “I believe that the
information sought will raise several genuine issues of material fact.” The district
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court properly concluded this was insufficient. See, e.g., Stevens, 899 F.3d at 678–
79.
We also agree with the district court that because Appellants filed no
opposition to the summary judgment motion, they failed to show that genuine
issues of fact precluded summary judgment.
2. The district court denied Appellants’ motion to modify the scheduling order
because Appellants were not diligent in seeking discovery, and thus failed to
demonstrate the “good cause” required by Rule 16(b). The record supports the
district court’s conclusion. “Rule 16(b)’s ‘good cause’ standard primarily
considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at
609. Here, the record supports that Appellants were not diligent in seeking
discovery. For example, Appellants’ motion to compel discovery, filed just three
weeks before the discovery cut-off date, sought to compel responses to discovery
requests that Appellees said they would not provide nearly nine months before.
The district court did not abuse its discretion in denying Appellants’ motion to
modify the scheduling order.
3. Appellants appeal the magistrate judge’s denial of their motion to compel
discovery. Appellees argue that Appellants failed to timely object under Rule 72,
which provides that a party must object to a magistrate judge’s pretrial non-
dispositive order within fourteen days after being served with a copy of the order.
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Fed. R. Civ. P. 72. Appellants make no attempt to rebut this correct argument.
Appellants’ failure to comply with Rule 72 bars their challenge to the magistrate
judge’s order denying their motion to compel discovery.
4. Appellants challenge the magistrate judge’s order sanctioning them and their
counsel for violating a protective order. Their arguments that the magistrate judge
abused her discretion are either unsupported by the record or not reasoned. As an
example, Appellants argue that the sanctions order was an unconstitutional
restraint on free speech. But Appellants only cite an inapplicable case and
provisions of the United States and California Constitutions with no discussion
explaining how the cited provisions support their argument. Appellants’
arguments challenging the sanctions order are waived. See United States v. Graf,
610 F.3d 1148, 1166 (9th Cir. 2010).
AFFIRMED.
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Brent Bailey v. Gatan, Inc.
Combined Opinion