Kenneth W. Penders, Ii v. Sega of America, Inc.; Electronic Arts, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH W. PENDERS, II,
Plaintiff - Appellant,
v.
SEGA OF AMERICA, INC.;
ELECTRONIC ARTS, INC.,
Defendants - Appellees.
No. 12-55544
D.C. No. 2:11-cv-08173-ODW-E
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted October 11, 2013
Pasadena, California
Before: PREGERSON and TALLMAN, Circuit Judges, and SIMON, District
Judge.**
Kenneth W. Penders, II (“Penders”) appeals the district court’s dismissal
without prejudice of his claims against SEGA of America, Inc. (“SEGA”) and
FILED
OCT 23 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Michael H. Simon, District Judge for the U.S. District
Court for the District of Oregon, sitting by designation.

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Electronic Arts, Inc. (“EA”) for copyright infringement and related claims arising
out of SEGA’s and EA’s alleged use of Penders’s copyrighted “Sonic the
Hedgehog” creations, particularly in the Sonic Chronicles: The Dark Brotherhood
video game. Penders argues on appeal that the district court improperly applied the
first-to-file rule and that the court should have stayed, rather than dismissed, the
case. We have jurisdiction under 28 U.S.C. § 1291.
The district court properly exercised its discretion when it applied the first-
to-file rule. See Alltrade, Inc. v. Uniweld Prods. Inc., 946 F.2d 622, 625 (9th Cir.
1991). Chronology, similarity of parties, and similarity of issues all support that
discretionary ruling. See id.
Penders failed to apprise the district court why dismissal would negatively
impact his potential monetary award. Because the district court was not informed
of this, it did not abuse its discretion when it chose to dismiss without prejudice,
rather than stay, the Second California Action.
AFFIRMED. Each party shall bear its own costs on appeal.
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