NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS ATENCIO, an adult individual; GIAN CATERINE, an adult individual, also known as John Cate,

Plaintiffs

- Appellants,

v. TUNECORE, INC., a corporation,

Defendant

- Appellee. No. 19

- 55814
D.C. No. 2:16

- cv - 01925

- DMG

- MRW

M EMORANDUM *

THOMAS ATENCIO, an adult individual; GIAN CATERINE, an adult individual, also known as John Cate,

Plaintiffs

- Appellees,

v. TUNECORE, INC., a corporation,

Defendant

- Appellant. No. 19

- 55901

D.C. No. 2:16

- cv - 01925

- DMG

- MRW

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding Argued and Submitted November 16, 202 0

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

JAN 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 Pasadena, California Before: RAWLINSON and HUNSAKER, Circuit Judges, and ENGLAND, * * Senior District Judge.
Thomas Atencio and Gian Caterine (Plaintiffs) , founde rs of TuneCore , Inc., received stock

- option agreements in exchange for the ir services to TuneCore

. After

unsuccess fully exercis ing their options , Plaintiffs sued Tune C ore alleging it
breached the stock

- option agreements and was illegally withholding Plaintiffs’ wages by not allowing them to exercise their options. Following trial, the jury
awarded Plaintiffs the value of their stock options. Both Plaintiffs and TuneCore appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Wage s . We review de nov o the district court’s dismiss al of Plaintiffs’ wage claims under Federal Rule of Civil Procedure 12(b)(6). Curtis v. Irwin Indus., Inc. , 913 F.3d 1146, 1151 (9th Cir. 2019). Plaintiffs argue that under the law of the states where they reside, California and Massachusetts , the stock

- option agreements are
wag es. 1 T he stock

- option agreements , however, have New York choice

- of

- law

** The Honorable Morrison C. England, Jr., United States Senior District Judge for the Eastern District of California, sitting by designation.

1 While TuneCore arguably forfeited the right to assert that New York law was applicable under a choice

- of

- law analy sis by never raising the issue to the district court, that forfeiture was waived by Plaintiffs on appeal

. Norwood v. Vance , 591 F.3d 1062, 1068 (9th Cir. 2010) (holding that a party can “waive waiver” by not raising it on appeal).3

provision s
. In this diversity case , w e use California’s ch oice

- of

- law rules to determine what law applies

. Mortensen v. Bresnan Commc ’ ns , LLC , 722 F.3d 1151, 1161 (9th Cir. 2013)

. Under California law, the New York choice

- of

- law provision s control unless
Plaintiffs show that application of New York law will be contrary to a fundamental policy of either California or Massachusetts and that those states have a greater
material interes t in the matter than New York. See Wash. Mut. Bank, FA v. Superior
Ct

. , 24 Cal. 4th 906, 916 (2001). Although California and Massachusetts may have a fundamental policy to regulate labor that occurs within their borders, Plaintiffs
failed to show that eith er of these jurisdictions ha ve a greater material interest than
New York in this case. See id. at 917 ( explaining the burden is on the party challenging the contractual choice

- of

- law provision). Consequently, New York law
governs Plaintiffs ’ claims , and, as the parties concede, stock options are not “wages”

u nder New York law. Gilman v. Marsh & McLennan Cos. , 868 F. Supp. 2d 118, 135 (S.D.N.Y. 2012); Guiry v. Goldman, Sachs & Co. , 814 N.Y.S.2d 617, 618

– 19 (N.Y. App. Div. 2006).
Judicial Admission. In the ir operative c omplaint, Plaintiffs alleged that Atencio was entitled to $49,103.36 in damages and Caterine was entitled to $196,816.68. Plaintiffs’ “[f]actual assertions in [their] pleadings . . . are considered judicial admissions conclusively binding on” them unless they amend the ir4

pleadings. Am. Title Ins. v. Lacelaw Corp. , 861 F.2d 224, 226 (9th Cir. 1988). T he
district court permissibly concluded that Plaintiffs did not diligently seek leave to amend their complaint

. In re W. States Wholesale Nat. Gas Antitrust Litig. , 715 F.3d 716, 73 7 (9th Cir. 2013) ( noting that Federal Rule of Civil Procedure 16’s “ good

cause ” requirement primarily considers a party’s diligence). T herefore, Plaintiffs are bound by their original damages allegation s
. Id. Summary Judgment. TuneCore contends that the district court erred in denying its motion for summary judgment on the breach

- of

- contract and quantum

meruit claims. This argument “fails at the outset” because these claims were presented to and decided by the jury at trial

. Cheffins v. Stewart , 825 F.3d 588, 596

– 97 (9th Cir. 2016) (citation omitted)

. Waiver
. We review de novo the district court’s denial of TuneCore ’s motion for judgment as a matter of law against the jury’s finding that Caterine did not waive
his stock

- option rights

. Harper v. City of Los Angeles , 533 F.3d 1010, 1021 (9th Cir. 2008). C onstruing the evidence in the light most favorable to Caterine , id. , the
district court did not err becaus e n one of Caterine ’s statements in his emails to
TuneCore evidence d a clear waiver of his option rights , see Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgmt., L.P. , 817 N.Y.S.2d 606, 611 (N.Y. 2006) , and the jury’s conclusion was not unreaso nable , Zhang v. Am. Gem Seafoods, Inc. ,5

339 F.3d 1020, 1038 (9th Cir. 2003) (“ We must accept any reasonable interpretation of the jury ’ s actions

. ”)

. Jury Instruction
. Finally, TuneCore seeks remand for a new trial and argues
the trial court should be directed to provide a different jury instruction regarding
waiver. Because a new trial is not warranted , we need not reach this jury instruction argument

. Regardless , it was not reversible error for the district court to reject
T uneCore’s requested waiver instruction because the given instruction fairly and correctly covered the elements of waiver

. Dang v. Cross , 422 F.3d 800, 805 (9th Cir. 2005) (“In evaluating jury instructions, prejudicial error results when, looking to the instructions as a whole, the substance of the applicable law was [not] fairly and correctly covered.” ( modification in original) (citation omitted)).
AFFIRMED.