NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BESTWAY (USA), INC.; et al., 

Plaintiffs-Appellees, 

 v. 

LEONARD GREGORY SCOTT; EUREKA 

INVENTIONS LLC, 

Defendants-cross-claimantsAppellees, 

PIETRO PASQUALE-ANTONI SGROMO, 

Defendant-Appellant, 

and 

WAGMORE & BARKLESS LLC, 

Defendant.

Nos. 18-16228 

18-17040 

D.C. No. 4:17-cv-00205-HSG 

MEMORANDUM*

BESTWAY (USA), INC.; et al., 

Plaintiffs-Appellees, 

 v. 

PIETRO PASQUALE-ANTONI SGROMO, 

No. 19-15709 

D.C. No. 4:17-cv-00205-HSG 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

DEC 18 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-16228 

Defendant-Appellant, 

and 

WAGMORE & BARKLESS LLC, 

Defendant, 

EUREKA INVENTIONS LLC; LEONARD 

GREGORY SCOTT, 

Defendants-cross-claimants.

BESTWAY (USA), INC.; et al., 

Plaintiffs-Appellees, 

 v. 

PIETRO PASQUALE-ANTONI SGROMO, 

Defendant-Appellant, 

and 

WAGMORE & BARKLESS LLC; et al., 

Defendants.

No. 19-15797 

D.C. No. 4:17-cv-00205-HSG 

Appeals from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Submitted December 11, 2019**

 

** The panel unanimously concludes these cases are suitable for decision 
3 18-16228 

Before: WALLACE, CANBY, and TASHIMA, Circuit Judges. 

In these consolidated appeals, Pietro Pasquale-Antoni Sgromo appeals pro se 

from the district court’s summary judgment and orders in this diversity jurisdiction 

interpleader action. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

The district court properly denied Sgromo’s motion to compel arbitration 

because appellees demonstrated Sgromo waived his right to arbitration. See 

Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1259 (9th Cir. 2017) (standard of 

review); Martin v. Yasuda, 829 F.3d 1118, 1123-24 (9th Cir. 2016) (whether a 

party has waived its right to arbitration is a matter “for judicial determination 

unless the parties clearly and unmistakably provide otherwise”; waiver requires 

“knowledge of an existing right to compel arbitration,” “acts inconsistent with that 

existing right,” and “prejudice to the party opposing arbitration” (citations and 

internal quotation marks omitted)).

Because Sgromo failed to oppose cross-claimants’ motion for summary 

judgment, plaintiffs’ motion for a preliminary injunction, and plaintiffs’ motion for 

attorneys’ fees and costs, we do not consider Sgromo’s challenge to the district 

court’s disposition of those motions. See Alaska Airlines, Inc. v. United Airlines, 

Inc., 948 F.2d 536, 546 n.15 (9th Cir. 1991) (“It is well established that an 

 

without oral argument. See Fed. R. App. P. 34(a)(2).
4 18-16228 

appellate court will not reverse a district court on the basis of a theory that was not 

raised below.”); see also Novato Fire Prot. Dist. v. United States, 181 F.3d 1135, 

1141 n.6 (9th Cir. 1999) (failure to raise issue at summary judgment waives right 

to raise issue on appeal). We do not consider matters not specifically and distinctly 

raised and argued in the opening brief, or arguments and allegations raised for the 

first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Sgromo’s motion to file an oversized reply brief is granted. The Clerk will 

file the oversized brief submitted at Docket Entry No. 62 in No. 18-16228; Docket 

Entry No. 39 in No. 18-17040; Docket Entry No. 33 in No. 19-15709; and Docket 

Entry No. 29 in No. 19-15797. 

Appellees’ motion to seal is granted. The Clerk will maintain under seal 

appellees’ supplemental excerpts of record, volume IV. 

AFFIRMED.