Osiris C. Terry v. Don Quijote

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSIRIS C. TERRY,
Plaintiff-Appellant,
v.
DON QUIJOTE,
Defendant-Appellee.
No. 20-16203
D.C. No. 1:19-cv-00401-DKW-RT
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Submitted May 18, 2021**
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
Osiris C. Terry appeals pro se from the district court’s judgment dismissing
for failure to comply with a court order his products liability action. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Ferdik
v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). We affirm.
* 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 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 20-16203
The district court did not abuse its discretion in dismissing Terry’s action
under Federal Rule of Civil Procedure 41(b) because Terry failed to comply with
the district court’s order to file an amended complaint that alleged federal
jurisdiction over his claims. See id. at 1260-63 (setting forth factors for
determining whether a pro se action should be dismissed under Rule 41(b) and
requiring “a definite and firm conviction” that the district court “committed a clear
error of judgment” to overturn such a dismissal (citation and internal quotation
marks omitted)).
The district court did not abuse its discretion in denying Terry’s post-
judgment motions because Terry failed to demonstrate any basis for relief. See
Lemoge v. United States, 587 F.3d 1188, 1191-92 (9th Cir. 2009) (setting forth
standard of review and discussing factors for excusable neglect under Fed. R. Civ.
P. 60(b)(1)); Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001)
(setting forth standard of review and discussing factors for granting a motion for
reconsideration under Fed. R. Civ. P. 59(e)).
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).
AFFIRMED.

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