The Satanic Temple, miffed it was not selected to give the invocation at the local city council meeting, sued the City of Scottsdale for discrimination. At the two-day trial, the plaintiffs presented an as-applied discrimination theory, arguing city councilmembers were biased against the Prince of Darkness. Unpersuaded, the district judge found the plaintiffs failed to carry their burden.
The plaintiffs then filed a motion for supplemental and amended findings. In this posttrial motion, the plaintiffs asserted a facial-discrimination theory. The district court found this theory was waived because the plaintiffs had failed to include it in the pretrial order.
In Satanic Temple, Inc. v. City of Scottsdale, No. 20-15338 (9th Cir. May 19, 2021), the Ninth Circuit agreed the issues were waived. "Under Rule 16(e) of the Federal Rules of Civil Procedure, a pretrial order controls the course of the action, unless modified after a final pretrial conference to prevent manifest injustice. Fed. R. Civ. P. 16(e). We have held that “issues not preserved in the pretrial order have been eliminated from the action.” See S. Cal. Retail Clerks Union & Food Emps. Joint Pension Tr. Fund v. Bjorklund, 728 F.2d 1262, 1264 (9th Cir. 1984) (citing United States v. Joyce, 511 F.2d 1127, 1130 n.1 (9th Cir. 1975))."
Of course, the district court would have been free to set aside the waiver in its discretion. But on appeal, the plaintiff-appellants failed to challenge the district court's refusal to so exercise its discretion. And the Ninth Circuit was not inclined to be the devil's advocate: “Our circuit has repeatedly admonished that we cannot ‘manufacture arguments for an appellant’ and therefore we will not consider any claims that were not actually argued in appellant's opening brief.” Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)).
The Devil also could not get a foothold when it came to the record. The court struck about 150 pages of the appellants' Excerpts of Record because they were made up of purported trial exhibits that were missing the clerk's exhibit cover sheets, and were not copies of actual trial exhibits, and also did not even correspond with the trial exhibit numbers. "This Court does not consider documents that were not filed with the district court. Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (internal citations omitted) (“Papers not filed with the district court or admitted into evidence by that court are not part of the clerk's record and cannot be part of the record on appeal.”)."
The court also found the district court did not abuse its discretion in excluding two city council member emails as hearsay, because those emails were not written in their official capacities, and the emails would not have changed the result anyway because there was no evidence the city manager who made the invocation decision ever saw those emails or spoke to those council members.
Here is the video clip from episode 11 of Tim's podcast, the California Appellate Law Podcast, discussing this issue.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at firstname.lastname@example.org or (714) 641-1232.