Ernest Calhoon v. Richard Thierolf, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 23, 2024
• Docket: 21-35950
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ERNEST R. CALHOON, No. 21-35950

Plaintiff-Appellant, D.C. No. 1:19-cv-00884-MC

v. MEMORANDUM * RICHARD B. THIEROLF, Jr.; JACOBSON, THIEROLF AND DICKEY P.C.; DOES, 1- 100,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted October 16, 2024**

Before: SILVERMAN, R. NELSON, and MILLER, Circuit Judges.

Ernest R. Calhoon appeals pro se from the district court’s judgment

dismissing his diversity action alleging various federal and state law claims

connected to the estates of his mother and maternal grandparents and the maternal

* 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). grandparents’ guardianship proceedings. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo a dismissal on the basis of the applicable statute of

limitations and under Federal Rule of Civil Procedure 12(b)(6). Cholla Ready Mix,

Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004). We affirm.

The district court properly dismissed as time-barred Calhoon’s claims on

behalf of his mother’s and grandparents’ estates because Calhoon failed to raise

those claims within the applicable limitations period. See Or. Rev. Stat.

§§ 12.190(1) (stating that limitations period for actions brought after death is

within one year of death); 30.075(1) (stating that limitations period for personal

injury actions brought after death is within three years of death); 30.020(1) (stating

that limitations period for certain wrongful death actions is within three years of

death); see also Mathies v. Hoeck, 588 P.2d 1, 2-3 (Or. 1978) (explaining that

Oregon’s general personal injury statute, Or. Rev. Stat. § 12.110(1), provides a

two-year limitations period that, in cases of fraud or deceit, “begins to run when

the plaintiff knows or should have known of the alleged fraud”).

The district court properly dismissed Calhoon’s individual claims because

Calhoon failed to allege facts sufficient to state any plausible claim. See Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that to avoid dismissal, “a complaint

must contain sufficient factual matter, accepted as true, to state a claim to relief

that is plausible on its face” (citation and internal quotation marks omitted)).

2 21-35950 The district court did not abuse its discretion in denying further leave to

amend because amendment would have been futile. See Cervantes v. Countrywide

Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of

review and explaining that dismissal without leave to amend is proper when

amendment would be futile).

The district court did not abuse its discretion in denying Calhoon’s post-

judgment motion because Calhoon failed to establish any basis for relief. See Sch.

Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th

Cir. 1993) (setting forth standard of review and bases for reconsideration).

The district court did not abuse its discretion in staying discovery pending

the outcome of defendants’ motion to dismiss. See Laub v. U.S. Dep’t of Interior,

342 F.3d 1080, 1084, 1093 (9th Cir. 2003) (setting forth standard of review and

explaining that “a decision to deny discovery will not be disturbed except upon the

clearest showing that the denial of discovery results in actual and substantial

prejudice to the complaining litigant” (citation and internal quotation marks

omitted)).

We do not consider arguments and allegations raised for the first time on

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

AFFIRMED.

3 21-35950