Unpublished Disposition, 875 F.2d 870 (9th Cir. 1988)

MEMORANDUM^** 

Elijah Gordon and Ida F. Bush appeal from adverse judgments following trial in two consolidated actions involving Title VII and Sec. 1981 claims. We affirm.

FACTS

Appellants are black "D-level" employees of the Los Angeles Department of Water and Power ("DWP"). The gravamen of appellants' complaint was the promotion of an Hispanic woman from a D-level to a vacant C-level position without giving to the plaintiffs notice of the opening and the opportunity to interview for the position. Appellants assert that they had seniority over the successful applicant. Their first action alleged causes of action under 42 U.S.C. § 1981, Title VII, and pendent state law claims based on contract. Their second action alleged a cause of action under 42 U.S.C. § 2000e-3 for retaliation aimed at them because of the original filing. The two actions were consolidated for trial. The Sec. 1981 count was tried before a jury and the Title VII counts before the court. Both the jury and the court held against appellants.

Appellants were represented by counsel below, but bring this appeal pro se.¹  Their briefs suffer from a lack of understanding of the function of appellate review. Appellants' argument consists of little more than the bare assertion that they should not have lost their case. We may not, however, retry their case for them. DWP in its Answering Brief has attempted to give some definition to the appeal by identifying specific issues which, in their opinion, appellants may be presenting. Appellants do not appear to agree completely with DWP's version of the issues, but have not used their Reply Brief to clarify what they view the issues to be. We have endeavoured to consider every claim plausibly raised by appellants' briefs.

DISCUSSION

Plaintiffs filed two separate lawsuits. No. 86-2775 alleged claims under 42 U.S.C. § 1981 and Title VII. (A pendent state law claim was also included but subsequently dismissed by plaintiffs.) No. 87-3468 alleged unlawful retaliation for the filing of 86-2775, in violation of Sec. 704(a) of Title VII. The cases were consolidated for trial. The Sec. 1981 claim in 86-2775 was tried to a jury, the Title VII claims in 86-2775 and 87-3468 to the court. The jury returned a verdict in favor of defendants on February 5, 1988. Judgment was entered on February 11, 1988. The court decided in favor of the defendants on the Title VII counts on March 2, 1988, and entered judgment on March 10, 1988.

The notice of appeal is from the judgment on the verdict entered in case number 86-2775 on February 11, 1988. The notice of appeal was filed on March 1, 1988. Thus, the notice of appeal technically does not include the judgment on either Title VII claim. Plaintiffs nevertheless purport to appeal the Title VII claims. Defendants are willing to deem the notice of appeal inclusive of all causes of action in both cases.

Whether the requirement of a timely notice of appeal may be waived by the appellee is a novel and difficult question. See Torres v. Oakland Scavenger Co., 108 S. Ct. 2405, 2408 (1988) (notice of appeal is jurisdictional; courts of appeal must distinguish between imperfect but substantial compliance and waiving the requirements altogether). Probably little harm could result from construing appellee's waiver and filing of a responsive brief as a sufficient compliance with the notice of appeal requirements to give us jurisdiction over appellants' appeal of the dismissal of their Title VII claims. We see no danger of appellees participating in a flooding of the courts of appeals by waiving defects in notices of appeal. However, since we conclude that plaintiffs' appeal of the dismissal of the Title VII claims would fail on the merits in any event, we need not decide whether the appeal of the Title VII aspect of the case was or was not perfected.

Appellants argue that DWP's late filing of an answer required the district court to enter default judgment in their favor. Fed. R. Civ. P. 12(a) requires service of an answer within 20 days after service of the complaint. Rule 55 provides for entry of a default judgment if a defendant fails to answer; however, if the defaulting party makes an appearance, the court and not the clerk must enter the default, and only after notice and hearing. Rule 55(b) (1) and (2). Whether to grant a motion for default is within the discretion of the district court. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986).

Plaintiffs' counsel agreed to an extended filing date. Plaintiffs nevertheless assert that, under Local Rule 7.3.2 of the Central District of California, only the court could approve a late filing date. We do not reach the merits of this claim since the plaintiffs never moved for default below. As a general rule, an issue not presented to the district court cannot be raised for the first time on appeal. See, e.g., Gonzales v. Parks, 830 F.2d 1033, 1037 (9th Cir. 1987). As the discretion given to district courts in granting motions for default judgments attests, the filing of an answer is not a jurisdictional prerequisite and therefore timeliness of the answer need not be considered by this court.

DWP suggests that appellants' appeal can be construed to include a generalized challenge to the sufficiency of the evidence. We tend to disagree. No challenge to the evidence is mentioned in appellants' statement of issues.²  In their Reply Brief, they assert that this court "has the power to reverse decisions made by the district court after hearing and reviewing the evidence." Appellants misunderstand the function of an appellate court. Although appellants discuss in a general way the evidence presented below, they do not argue specifically that any finding of fact was incorrect or that there was a failure of defendant's proof to rebut plaintiffs' prima facie case. Although pro se briefs and pleadings are to be interpreted liberally, something more than what appellants have done here is required to perfect an appeal based on sufficiency of the evidence or allegedly erroneous findings of fact.

Even were we to agree with DWP that appellants' brief raises evidentiary issues, their failure to provide a transcript of all relevant evidence, as required by Fed. R. App. P. 10(b) (2), makes review of their evidentiary claims impossible. The appropriate procedure in such a case is for our court to decline to consider appellants' evidentiary arguments. See Jensen v. United States, 326 F.2d 891, 893 (9th Cir. 1964).

Appellants allege in their statement of issues that "the evidence for the discrimination complaint should not have been included with evidence for the retaliation complaint and given to the jury." Appellants assert that exhibits pertaining to both causes of action were compiled together, and allege that this was done with the intent to confuse the jury. The only evidence of confusion they allege is a note from the jury, noting certain "extraordinary and unusual" circumstances in DWP's promotion process. The jury had four criticisms of DWP which it wished to express. Appellants argue that two of them, concerning DWP's testing and scoring procedures, were relevant only to their court-tried retaliation complaint. This, appellants argue, shows DWP improperly diverted the jury's attention from their discrimination complaint.

Appellants do not indicate whether they objected to this evidence going to the jury. At any rate, it is impossible to see how the jury note shows that consolidation prejudiced their case. The jury apparently found itself constrained to grant a verdict in favor of DWP, but wished to make a statement sympathetic to the plaintiffs. To the extent appellants challenge the consolidation itself, district courts have the power to consolidate actions involving common questions of law or fact. Fed. R. Civ. P. 42(a). Exercise of this power is reviewed for abuse of discretion. Cf. In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987). We find no abuse here.

Appellants argue on appeal that "the jury panel which consisted of four whites and one Hispanic was biased in its decision-making." This claim is facially inconsistent with their argument, in the same paragraph, that the jury's note "is a good indication of defendant's liability to plaintiffs." Racial bias is not shown merely by showing that members of races other than plaintiffs' comprised a majority on the jury. See Hirst v. Gertzen, 676 F.2d 1252, 1260 (9th Cir. 1982). Because appellants fail to adduce any other evidence whatsoever of racial bias, this claim too must fail.

We AFFIRM.