NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PETER THOMPSON, No. 21-35528
Plaintiff-Appellant, D.C. No. 2:18-cv-00075-BMM
v. MEMORANDUM* GREGG SULLIVAN, City of Bozeman Attorney; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding
Submitted June 26, 2023**
Before: WALLACE, D.W. NELSON, and O’SCANNLAIN, Circuit Judges.
Peter Thompson appeals pro se from the district court’s judgment dismissing
with prejudice his action under 42 U.S.C. § 1983; the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962, 1964(c); and state law.
This action stems from Thompson’s dispute with the Cattail Creek Community
* 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). Association (“CCCA”) and numerous other defendants over covenants that
restricted Thompson’s ability to build on his property, and previous state-court
litigation concerning other covenant restrictions. We have jurisdiction under 28
U.S.C. § 1291. We review de novo the district court’s dismissal for failure to state
a claim, Chappel v. Lab’y Corp. of America, 232 F.3d 719, 723–24 (9th Cir. 2000),
its dismissal based on a statute of limitations, Grimmett v. Brown, 75 F.3d 506, 510
(9th Cir. 1996), and its determination that res judicata applies, Troutt v. Colo. W.
Ins. Co., 246 F.3d 1150, 1156 (9th Cir. 2001). We review for abuse of discretion
the district court’s dismissal of the action with prejudice for failure to comply with
an order of the court. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). We
affirm.
1. The district court properly dismissed Thompson’s claim against Wayne
Jennings, Jennings Law Office, and Amy Hanson (“the Jennings defendants”) for
malicious prosecution, premised on their legal representation of the CCCA in the
state-court litigation, because Thompson cannot show that “there was a lack of
probable cause for the defendant’s acts” or that “the judicial proceeding terminated
favorably” for him. White v. State ex rel. Mont. State Fund, 305 P.3d 795, 803
(Mont. 2013) (citation omitted) (explaining requirements of a civil action for
malicious prosecution); see Cattail Creek Cmty. Assoc. v. Thompson, 450 P.3d 865
(Mont. 2019) (unpublished) (affirming trial court’s judgment in favor of the
2 CCCA).
The district court properly dismissed Thompson’s claim against the Jennings
defendants for abuse of process because Thompson did not allege facts showing
that they used the state-court litigation “to coerce [him] to do some collateral thing
which he could not be legally and regularly compelled to do.” Brault v. Smith, 679
P.2d 236, 240 (Mont. 1984) (explaining requirements of a claim for abuse of
process).
The district court properly dismissed Thompson’s § 1983 claim against the
Jennings defendants because Thompson did not provide factually supported
allegations that they conspired with a state actor. See Franklin v. Fox, 312 F.3d
423, 441 (9th Cir. 2002) (“A private individual may be liable under § 1983 if she
conspired or entered joint action with a state actor.” (citation omitted)).
The district court properly dismissed Thompson’s civil RICO claim against
the Jennings defendants because Thompson did not allege facts showing a pattern
of racketeering activity. See Grimmett, 75 F.3d at 510 (explaining requirements of
a civil RICO claim) (citation omitted).
2. The district court properly dismissed as time barred Thompson’s legal
malpractice, § 1983, and civil RICO claims against Arthur Wittich and Wittich
Law P.C., premised on their previous legal representation of Thompson. See
Mont. Code Ann. § 27-2-204 (three-year statute of limitations for personal injury
3 claims); id. § 27-2-206 (three-year statute of limitations for legal malpractice
claims); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (“[F]ederal courts
borrow the statute of limitations for § 1983 claims applicable to personal injury
claims in the forum state.”); Grimmett, 75 F.3d at 510 (“[T]he statute of limitations
for a civil RICO claim is four years.”). The district court properly found that
Thompson’s state-law claims sound in legal malpractice because “[t]he gravamen
of the claim, not the label attached, controls the limitations period to be applied to
that claim.” Erickson v. Croft, 760 P.2d 706, 710 (Mont. 1988) (citation omitted).
The last alleged act by these defendants occurred on March 6, 2012, when Arthur
Wittich issued an opinion letter that Thompson found unsatisfactory. Because
Thompson did not file his initial complaint until November 30, 2018, the claims
are time barred.
3. The district court properly dismissed as time barred Thompson’s fraud,
negligence, § 1983, and civil RICO claims against Susan B. Swimley, Inc., and
Susan B. Swimley (“the Swimley defendants”), premised on their drafting of
Articles of Incorporation and other work for the CCCA. See Mont. Code Ann.
§ 27-2-203 (two-year statute of limitations for fraud claims); id. § 27-2-204 (three-
year statute of limitations for personal injury and tort claims); TwoRivers, 174 F.3d
at 991; Grimmett, 75 F.3d at 510. The district court properly found that Thompson
had the relevant information with respect to these defendants’ actions by July
4 2011, when he sought and hired counsel for the purpose of pursuing legal action.
The court properly rejected Thompson’s argument that the limitations period
should be tolled because he made no allegation that the Swimley defendants
engaged in “affirmative conduct . . . calculated to obscure the existence of the
cause of action.” Holman v. Hansen, 773 P.2d 1200, 1203 (Mont. 1989) (citation
omitted) (explaining requirements for a claim of fraudulent concealment to toll the
statute of limitations). The claims thus are time barred.
The district court properly dismissed Thompson’s civil conspiracy claim
against the Swimley defendants because the failure of the underlying tort claim is
fatal to this claim. See Hughes v. Pullman, 36 P.3d 339, 343–44 (Mont. 2001).
4. The district court properly dismissed as time barred Thompson’s claims
for breach of the implied covenant of good faith and fair dealing, fraud, violations
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PETER THOMPSON, No. 21-35528
Plaintiff-Appellant, D.C. No. 2:18-cv-00075-BMM
v. MEMORANDUM* GREGG SULLIVAN, City of Bozeman Attorney; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding
Submitted June 26, 2023**
Before: WALLACE, D.W. NELSON, and O’SCANNLAIN, Circuit Judges.
Peter Thompson appeals pro se from the district court’s judgment dismissing
with prejudice his action under 42 U.S.C. § 1983; the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962, 1964(c); and state law.
This action stems from Thompson’s dispute with the Cattail Creek Community
* 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). Association (“CCCA”) and numerous other defendants over covenants that
restricted Thompson’s ability to build on his property, and previous state-court
litigation concerning other covenant restrictions. We have jurisdiction under 28
U.S.C. § 1291. We review de novo the district court’s dismissal for failure to state
a claim, Chappel v. Lab’y Corp. of America, 232 F.3d 719, 723–24 (9th Cir. 2000),
its dismissal based on a statute of limitations, Grimmett v. Brown, 75 F.3d 506, 510
(9th Cir. 1996), and its determination that res judicata applies, Troutt v. Colo. W.
Ins. Co., 246 F.3d 1150, 1156 (9th Cir. 2001). We review for abuse of discretion
the district court’s dismissal of the action with prejudice for failure to comply with
an order of the court. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). We
affirm.
1. The district court properly dismissed Thompson’s claim against Wayne
Jennings, Jennings Law Office, and Amy Hanson (“the Jennings defendants”) for
malicious prosecution, premised on their legal representation of the CCCA in the
state-court litigation, because Thompson cannot show that “there was a lack of
probable cause for the defendant’s acts” or that “the judicial proceeding terminated
favorably” for him. White v. State ex rel. Mont. State Fund, 305 P.3d 795, 803
(Mont. 2013) (citation omitted) (explaining requirements of a civil action for
malicious prosecution); see Cattail Creek Cmty. Assoc. v. Thompson, 450 P.3d 865
(Mont. 2019) (unpublished) (affirming trial court’s judgment in favor of the
2 CCCA).
The district court properly dismissed Thompson’s claim against the Jennings
defendants for abuse of process because Thompson did not allege facts showing
that they used the state-court litigation “to coerce [him] to do some collateral thing
which he could not be legally and regularly compelled to do.” Brault v. Smith, 679
P.2d 236, 240 (Mont. 1984) (explaining requirements of a claim for abuse of
process).
The district court properly dismissed Thompson’s § 1983 claim against the
Jennings defendants because Thompson did not provide factually supported
allegations that they conspired with a state actor. See Franklin v. Fox, 312 F.3d
423, 441 (9th Cir. 2002) (“A private individual may be liable under § 1983 if she
conspired or entered joint action with a state actor.” (citation omitted)).
The district court properly dismissed Thompson’s civil RICO claim against
the Jennings defendants because Thompson did not allege facts showing a pattern
of racketeering activity. See Grimmett, 75 F.3d at 510 (explaining requirements of
a civil RICO claim) (citation omitted).
2. The district court properly dismissed as time barred Thompson’s legal
malpractice, § 1983, and civil RICO claims against Arthur Wittich and Wittich
Law P.C., premised on their previous legal representation of Thompson. See
Mont. Code Ann. § 27-2-204 (three-year statute of limitations for personal injury
3 claims); id. § 27-2-206 (three-year statute of limitations for legal malpractice
claims); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (“[F]ederal courts
borrow the statute of limitations for § 1983 claims applicable to personal injury
claims in the forum state.”); Grimmett, 75 F.3d at 510 (“[T]he statute of limitations
for a civil RICO claim is four years.”). The district court properly found that
Thompson’s state-law claims sound in legal malpractice because “[t]he gravamen
of the claim, not the label attached, controls the limitations period to be applied to
that claim.” Erickson v. Croft, 760 P.2d 706, 710 (Mont. 1988) (citation omitted).
The last alleged act by these defendants occurred on March 6, 2012, when Arthur
Wittich issued an opinion letter that Thompson found unsatisfactory. Because
Thompson did not file his initial complaint until November 30, 2018, the claims
are time barred.
3. The district court properly dismissed as time barred Thompson’s fraud,
negligence, § 1983, and civil RICO claims against Susan B. Swimley, Inc., and
Susan B. Swimley (“the Swimley defendants”), premised on their drafting of
Articles of Incorporation and other work for the CCCA. See Mont. Code Ann.
§ 27-2-203 (two-year statute of limitations for fraud claims); id. § 27-2-204 (three-
year statute of limitations for personal injury and tort claims); TwoRivers, 174 F.3d
at 991; Grimmett, 75 F.3d at 510. The district court properly found that Thompson
had the relevant information with respect to these defendants’ actions by July
4 2011, when he sought and hired counsel for the purpose of pursuing legal action.
The court properly rejected Thompson’s argument that the limitations period
should be tolled because he made no allegation that the Swimley defendants
engaged in “affirmative conduct . . . calculated to obscure the existence of the
cause of action.” Holman v. Hansen, 773 P.2d 1200, 1203 (Mont. 1989) (citation
omitted) (explaining requirements for a claim of fraudulent concealment to toll the
statute of limitations). The claims thus are time barred.
The district court properly dismissed Thompson’s civil conspiracy claim
against the Swimley defendants because the failure of the underlying tort claim is
fatal to this claim. See Hughes v. Pullman, 36 P.3d 339, 343–44 (Mont. 2001).
4. The district court properly dismissed as time barred Thompson’s claims
for breach of the implied covenant of good faith and fair dealing, fraud, violations
of the Montana Consumer Protection Act (“MCPA”), Mont. Code Ann. § 30-13-
101 et seq., and under § 1983 and RICO against Richard Embry, premised on his
alleged concealment of covenant changes when he sold property to Thompson.
See Mont. Code Ann. § 27-2-202(1) (eight-year statute of limitations for breach-of-
contract claims); id. § 27-2-203; id. § 27-2-204 (three-year statute of limitations for
a liability that is not based on a writing); id. § 27-2-211(1)(c) (two-year statute of
limitations for a liability created by statute); TwoRivers, 174 F.3d at 991;
Grimmett, 75 F.3d at 510. The district court properly found that Thompson was
5 aware of the covenant changes by February 2010, when the City of Bozeman
issued a building permit, and of any other relevant facts by July 2011, when he
sought and hired legal counsel. The claims thus are time barred.
5. The district court properly dismissed as timed barred Thompson’s fraud,
MCPA, § 1983, and civil RICO claims against Intrinsik Architecture, Inc., Tad
Tsukamoto, Allison Gilley, American Land Title Co, Brad Stratton, Sandan, LLC,
Daniel Madison, and Sandra Hamilton, premised on their alleged roles in
amending covenants and concealing the resulting changes. See Mont. Code Ann.
§ 27-2-203; id. § 27-2-204; id. § 27-2-211(1)(c); TwoRivers, 174 F.3d at 991;
Grimmett, 75 F.3d at 510. The district court properly found that Thompson had the
relevant information with respect to these defendants’ actions by July 2011, when
he sought and hired legal counsel. The claims thus are time barred.
6. The district court properly denied as barred by res judicata Thompson’s
request to declare that the CCCA lacked the ability to enforce covenant restrictions
against him because it was improperly formed because Thompson litigated and lost
this issue in state court. See Troutt, 246 F.3d at 1156–57 (explaining requirements
of res judicata); Cattail Creek Cmty. Assoc., 450 P.3d at *3 (holding against
Thompson on this issue).
7. The district court did not abuse its discretion in dismissing with prejudice
the claims in the First Amended Complaint because amendment would have been
6 futile. See Chappel, 232 F.3d at 725–26 (“A district court acts within its discretion
to deny leave to amend when amendment would be futile.” (citation omitted)).
The district court did not abuse its discretion in dismissing with prejudice
the Second Amended Complaint because Thompson failed to comply with the
court’s previous orders to provide a more definite statement and to file an amended
complaint of no more than twenty pages. See Fed. R. Civ. P. 12(e) (permitting the
court to strike a pleading or “issue any other appropriate order” if a party fails to
comply with an order to provide a more definite statement); Fed. R. Civ. P. 41(b)
(permitting the court to dismiss an action for failure to comply with an order);
Ferdik, 963 F.2d at 1260 (“District courts have the inherent power to control their
dockets and, in the exercise of that power they may impose sanctions including,
where appropriate, dismissal of a case.” (citation, internal quotation marks, and
alterations omitted)).
8. Thompson’s contention that the district court was biased against him is
unsupported by the record. See Liteky v. United States, 510 U.S. 540, 555 (1994)
(“[J]udicial rulings alone almost never constitute a valid basis for a bias or
partiality recusal motion.” (citation omitted)).
9. Thompson did not object to the magistrate judge’s February 26, 2020,
order denying his request to disqualify the Crowley Fleck law firm from
representing defendants, and he therefore is precluded from seeking appellate
7 review of that order. See Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174
(9th Cir. 1996).
10. We decline to consider matters not specifically and distinctly raised and
argued in the opening brief, including the district court’s dismissal of Thompson’s
federal claims against U.S. Bank, N.A., John Thorn, Scott Blando, and Wayne
Hirsch. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
11. Thompson’s motion to supplement the record on appeal and his request
for an extension of time to file the optional reply brief, filed on December 4, 2022
(Docket Entry No. 109), are DENIED.
Thompson’s supplemental motion to supplement the record on appeal, filed
on December 4, 2022 (Docket Entry No. 110), is DENIED.
Thompson’s motion for reconsideration of this court’s orders dated October
7, 2022, Docket Entry No. 104; and December 1, 2022, Docket Entry No. 108,
filed on December 5, 2022 (Docket Entry No. 111), is DENIED.
Thompson’s additional request for an extension of time to file the reply
brief, filed on December 13, 2022 (Docket Entry No. 115), is DENIED.
AFFIRMED.