Brad Greenspan v. iac/interactivecorp ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRAD GREENSPAN, No. 16-15908
Plaintiff-Appellant, D.C. No. 5:14-cv-04187-RMW
v.
MEMORANDUM*
IAC/INTERACTIVECORP, a Delaware
corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Brad Greenspan appeals from the district court’s order denying his Federal
Rule of Civil Procedure 60(b) motion for relief from the judgment dismissing for
failure to prosecute Greenspan’s putative shareholder class action. We have
jurisdiction under 28 U.S.C. § 1291. 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).
In his opening brief, Greenspan failed to challenge the district court’s
dismissal of his action or any other district court order, and therefore Greenspan
waived any such challenge. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999) (“[A]rguments not raised by a party in its opening brief are deemed
waived.”); Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not
manufacture arguments for an appellant, and a bare assertion does not preserve a
claim . . . .”).
Greenspan’s notice of appeal challenging the Securities and Exchange
Commission’s (“SEC”) May 2, 2016 Order Determining Whistleblower Award
Claim, which was filed in the district court, should have been filed in this court.
See 15 U.S.C. § 78u-6(f) (providing that certain determinations of whistleblower
awards “may be appealed to the appropriate court of appeals of the United States
not more than 30 days after the determination is issued by the Commission”). We
construe Greenspan’s notice of appeal as a petition for review. See Fed. R. App. P.
15(a)(4). In the interests of justice, we transfer Greenspan’s petition for review to
this court. See 28 U.S.C. § 1631; Kolek v. Engen, 869 F.2d 1281, 1284 (9th Cir.
1989) (setting forth conditions for transfer under 28 U.S.C. § 1631); see also Baeta
v. Sonchik, 273 F.3d 1261, 1264 (9th Cir. 2001) (“[B]ecause the purpose of the
transfer statute is to aid litigants who were confused about the proper forum for
review, a petition that would be time-barred without a transfer satisfies the interest
2 16-15908
of justice test.” (citation and internal quotation marks omitted)).
The Clerk shall file Greenspan’s notice of appeal (District Court Docket
Entry No. 104) as a petition for review of the SEC’s May 2, 2016 order and open a
new case in this court.
Greenspan’s motion to certify questions of law to the Delaware Supreme
Court (Docket Entry No. 12) is denied.
AFFIRMED.
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