United States v. 2020-05-14 | 19-15014 | RONALD DRAPER V. KCG AMERICAS LLC | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD STEPHEN DRAPER,

Plaintiff-Appellant,

v.

KCG AMERICAS LLC; et al.,

Defendants-Appellees.

No. 19-15014

D.C. No. 4:18-cv-02524-HSG

MEMORANDUM
*

Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding

Submitted May 6, 2020
**

Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.

Ronald Stephen Draper appeals pro se from the district court’s order
dismissing his action alleging claims under the Commodity Exchange Act, 7
U.S.C. §§ 1 et seq. (“CEA”) and state law. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010)

*
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).
FILED

MAY 14 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 19-15014
(dismissal under Fed. R. Civ. P. 12(b)(6)); Lukovsky v. City & County of San
Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008) (dismissal based on the statute of
limitations). We affirm.
The district court properly dismissed Draper’s action as untimely because
Draper filed this action more than two years after he knew of his alleged injury.
See 7 U.S.C. § 25(c) (setting forth two year statute of limitations for CEA claims);
Rotella v. Wood, 528 U.S. 549, 555 (2000) (“Federal courts . . . generally apply a
discovery accrual rule when a statute is silent on the issue.”). Furthermore, Draper
failed to establish that his previous action or advice from his attorneys were
grounds for equitable tolling. See In re Milby, 875 F.3d 1229, 1232 (9th Cir. 2017)
(describing the elements of equitable tolling); Spitsyn v. Moore, 345 F.3d 796, 800
(9th Cir. 2003) (ordinary attorney negligence will not justify equitable tolling).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We do not consider documents not presented to the district court. See
United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

3 19-15014
Draper’s request to file a supplemental opening brief (Docket Entry No. 51)
is granted. The supplemental brief has been filed at Docket Entry No. 51.
Draper’s requests in his opening brief to consolidate and stay the proceedings are
denied.
AFFIRMED.