FILED
NOT FOR PUBLICATION
APR 7 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACK BUCKHORN; et al., No. 19-15342
Plaintiffs-Appellees, D.C. No. 3:15-cv-04352-TSH
v.
MEMORANDUM*
MARLON EUGENE HETTINGER, DBA
Hettinger Electric, individually,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Thomas S. Hixson, Magistrate Judge, Presiding
Submitted March 27, 2020**
San Francisco, California
Before: GOULD and CHRISTEN, Circuit Judges, and LASNIK,*** District Judge.
*
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).
***
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
Appellant Marlon Eugene Hettinger, individually and doing business as
Hettinger Electric (Hettinger), appeals the district court’s order granting summary
judgment and attorneys fees to Plaintiffs-Appellees (Plaintiffs). Plaintiffs-
Appellees are Jack Buckhorn and Anisa M. Thomsen, trustees of the Redwood
Empire Electrical Workers Health and Welfare Trust Fund and other named trust
funds (Trustees), and Fregoso Builders, Inc. (Fregoso). We review de novo the
district court’s decision to grant summary judgment. See, e.g., Branch Banking &
Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017). We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we reverse and remand. Because the parties are
familiar with the facts, we recite only those necessary to resolve the issues on
appeal.
Hettinger contends that the district court erred by granting Plaintiffs’ motion
for summary judgment because Plaintiffs did not allege the state law breach of
contract claim in the pleadings. We agree.
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to
‘give the defendant fair notice of what the ... claim is and the grounds upon which
it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, federal
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notice pleading standards do not relieve Plaintiffs of the basic obligation to
articulate a cause of action. Plaintiffs’ amended complaints1 refer to Fregoso’s
assignment of its “rights” to pursue recovery against Hettinger, but nowhere
describe the nature of these rights or articulate the legal theory for the assigned
claim—breach of the subcontract between Fregoso and Hettinger. Nor does the
Settlement Agreement attached to the first amended complaint state the nature of
the assigned claim. Moreover, the pleadings do not assert the additional
jurisdictional support needed for the assigned claim, which arises under state law.
See Fed. R. Civ. P. 8(a)(1) (requiring “a short and plain statement of the grounds
for the court’s jurisdiction, unless the court already has jurisdiction and the claim
needs no new jurisdictional support”). Significantly, before the case was
reassigned to the magistrate judge at the summary judgment stage, the district court
judge dismissed Hettinger’s pro se counterclaim precisely because Hettinger did
not clearly articulate the legal basis for his claims.
It is impermissible to add a new claim at the summary judgment stage. See
Echlin v. PeaceHealth, 887 F.3d 967, 977–78 (9th Cir. 2018). Because Plaintiffs
1
The magistrate judge considered both Plaintiffs’ first and second amended
complaints in addressing the motion for summary judgment, but it is unclear from
our review of the docket whether the second amended complaint was ever accepted
for filing by the court. Whether the first or second complaint was operative
changes neither our analysis nor the outcome here.
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articulated the state law breach of contract claim for the first time at the summary
judgment stage rather than seeking to amend the pleadings, the district court erred
in granting Plaintiffs’ motion for summary judgment.
Because we conclude that Plaintiffs did not plead the state law breach of
contract claim, we do not reach Hettinger’s contentions that the district court erred
in exercising supplemental jurisdiction over the claim and in determining there was
no genuine dispute as to any material fact remaining with regard to the claim.
We reverse the grant of summary judgment to Trustees and Fregoso, vacate
the award of attorneys fees, and remand to the district court for proceedings
consistent with this decision. If the district court grants Plaintiffs leave to amend
the pleadings, Hettinger must be provided an opportunity to respond. See Fed. R.
Civ. P. 15(a).
REVERSED and REMANDED.
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