Dennis Gallipeau v. Microsoft Corporation

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS GALLIPEAU,
Plaintiff - Appellant,
v.
MICROSOFT CORPORATION,
Defendant - Appellee.
No. 11-35696
D.C. No. 2:10-cv-01508-JCC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted October 9, 2012**
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
Dennis Gallipeau appeals pro se from the district court’s judgment
dismissing his diversity action against Microsoft Corporation. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s
FILED
OCT 12 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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dismissal under Fed. R. Civ. P. 12(b)(6). Henry A. v. Willden, 678 F.3d 991, 998
(9th Cir. 2012). We affirm.
The district court properly dismissed Gallipeau’s action because Gallipeau’s
allegations that Microsoft failed to instruct him on how to permanently delete files
from his computer, leading to his imprisonment for knowing possession of child
pornography, do not state a claim that is plausible on its face. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007) (“Factual allegations must be enough to
raise a right to relief beyond the speculative level[.]”).
The district court properly dismissed the case with prejudice. See Steckman
v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998) (explaining that a
dismissal with prejudice is proper where amendment would be “an exercise in
futility”).
The district court did not abuse its discretion in denying Gallipeau’s motion
for reconsideration because Gallipeau’s late-filed opposition to the motion to
dismiss was considered by the court and did not present grounds for
reconsideration. See Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5
F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and grounds
warranting reconsideration).

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11-35696 3
Gallipeau’s request in his opening brief that counsel should be appointed for
him on appeal is denied.
AFFIRMED.

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