Tretiak v. Del Papa

23 F. App'x 676

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 13, 2001
• Docket: No. 00-17248; D.C. No. CV-99-01571-LDG
• Status: Published

Opinion

MEMORANDUM

**

Robert Tretiak appeals¹ pro se the district court’s dismissal with prejudice of his 42 U.S.C. §§ 1983 & 1985 action arising from two disciplinary proceedings brought against him, first, by the State of Nevada Securities Division and, second, by NASD Regulation, Inc. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

The district court did not err when it dismissed Tretiak’s claims arising from the state disciplinary proceedings in early 1997, the ALJ’s decision or the adoption of that decision in mid-1997, and the state’s issuance of a press release in June 1997. These claims were barred by the statute of limitations because they accrued more than two years before Tretiak filed his complaint on November 5,1999. Nev.Rev. Stat. § 11.190(4)(e)(2001); Perez v. Seevers, 869 F.2d 425, 426 (9th Cir.1989). The district court also properly dismissed Tretiak’s claim based upon the draft proposed order because absolute immunity protects state agency officials who are performing functions comparable to either judges or prosecutors. See Romano v.. Bible, 169 F.3d 1182, 1186-88 (9th Cir.1999).

The district court correctly dismissed Tretiak’s claims arising from any alleged injury to Retirement Financial Centers of America, Inc. or RFCA Financial Services, Inc. Neither corporation was named as a plaintiff. Tretiak cannot maintain a claim on behalf of a corporation, nor may he represent the corporations as a pro se plaintiff. See Shell Petroleum v. Graves, 709 F.2d 593, 594 (9th Cir.1983); Rowland v. California Men’s Colony, 506 U.S. 194, 202, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993).

Tretiak’s claims against NASD Regulation, Inc. and Sylvia Scott, an NASD enforcement attorney, arising from the NASD disciplinary proceeding were properly dismissed. NASD Regulation, Inc., when acting under the authority delegated to it by the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a-78mm, is entitled to absolute immunity from money damages. See Partnership Exch. Sec. Co. v. National Ass’n of Sec. Dealers, Inc., 169 F.3d 606, 608 (9th Cir.1999); Sparta Surgical Corp. v. National Ass’n of Sec. Dealers, Inc., 159 F.3d 1209, 1214 (9th Cir. 1998).

Finally, the district court properly dismissed Tretiak’s claims against Maurice Kamhi, an employee of the California Department of Corporations, arising out of an 1998 investigation of RFCA Financial, Inc. The district court properly determined that Kamhi is entitled to qualified immunity because Tretiak failed to meet his burden of showing that Kamhi’s conduct violated a clearly established right. See Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991).

AFFIRMED²

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

1 . Appellant's motion to amend the notice of appeal is granted. This court can assume jurisdiction based on a prematurely filed notice of appeal when "subsequent events validate [the] prematurely filed appeal.” Anderson v. Allstate Ins. Co., 630 F.2d 677, 681 (9th Cir. 1980). We take “a pragmatic approach to finality in situations where events subsequent to a nonfinal order fulfill the purposes of the final judgment rule.” Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1075 (9th Cir.1994). We therefore exercise jurisdiction over this appeal.

2 . Appellees’, Del Papa, Heller, Reis, Moore, Apenbrink, Gabe, Eckhart, Pridham, and Brierly's, motion to strike the supplemental mateñáis submitted by Appellant is granted. Appellant's motion to file and oversized reply brief is granted.