Kurt Huy Pham v. Financial Industry Regulatory Authority, Inc.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KURT HUY PHAM,
Plaintiff - Appellant,
v.
FINANCIAL INDUSTRY
REGULATORY AUTHORITY, INC.; et
al.,
Defendants - Appellees.
No. 13-15756
D.C. No. 3:12-cv-06374-EMC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted December 9, 2014**
Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.
Kurt Huy Pham appeals pro se from the district court’s judgment dismissing
his action seeking to vacate an arbitration award against him in a securities action.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district
FILED
DEC 18 2014
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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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court’s dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Hebbe
v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm.
The district court properly dismissed Pham’s action because Pham did not
timely serve his petition to vacate the arbitration award. See Cal. Civ. Proc. Code
§ 1288 (“A petition to vacate an award or to correct an award shall be served and
filed not later than 100 days after the date of the service of a signed copy of the
award on the petitioner.”). Contrary to Pham’s contentions, Pham was not entitled
to tolling because he did not voluntarily pursue internal remedies, and did not show
that he was sufficiently incapacitated for tolling to apply. See McDonald v.
Antelope Valley Cmty. Coll. Dist., 194 P.3d 1026, 1032-34 (Cal. 2008) (concluding
that equitable tolling applies to the voluntary pursuit of internal remedies); Tzolov
v. Int’l Jet Leasing, Inc., 283 Cal. Rptr. 314, 315 (Ct. App. 1991) (tolling statute of
limitations where an “individual has been injured so severely as to be rendered
incapable of caring for [his or her] property or transacting business, or
understanding the nature or effects of [his or her] acts” (citations and internal
quotation marks omitted)).
We reject Pham’s contentions regarding the merits of his motions for
reconsideration and for a new trial.
We do not consider matters not specifically and distinctly raised and argued
13-15756 2

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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) (per curiam).
AFFIRMED.
13-15756 3

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