Lal Bhatia v. Manmohan Wig , 479 F. App'x 768 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 11 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LAL BHATIA, Nos. 10-17089
10-17134
Plaintiff - Appellant,
D.C. No. 4:10-cv-00072-SBA
v.
MAN MOHAN K. WIG and WIG MEMORANDUM *
PROPERTIES, LLC,
Defendants - Appellees,
v.
UNITED STATES OF AMERICA,
Movant.
Appeals from the United States District Court
for the Northern District of California
Sandra B. Armstrong, District Judge, Presiding
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes these appeals are suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
In these appeals, Lal Bhatia appeals pro se from the district court’s summary
judgment in his action alleging violations of the Racketeer Influenced and Corrupt
Organizations (“RICO”) Act and state law claims, and defendants appeal from the
district court’s decision to deny their motion for entry of a vexatious litigant order
against Bhatia. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
the grant of summary judgment, Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010),
and for an abuse of discretion the decision denying the motion for a vexatious
litigant order, De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). We
affirm.
The district court properly granted summary judgment on Bhatia’s RICO
claim because Bhatia failed to raise a genuine dispute of material fact as to whether
the alleged predicate acts proximately caused an actionable injury. See 18 U.S.C.
§ 1964(c) (requiring injury to business or property in order to establish a civil
RICO claim); Rezner v. Bayerische Hypo-Und Vereinsbank AG, 630 F.3d 866, 873
(9th Cir. 2010) (“To have standing under civil RICO, [the plaintiff] is required to
show that the racketeering activity was both a but-for cause and a proximate cause
of his injury. Proximate causation . . . requires ‘some direct relation between the
injury asserted and the injurious conduct alleged.’” (citation omitted)).
The district court properly granted summary judgment on Bhatia’s fraud and
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abuse of process claims because Bhatia filed his complaint after the applicable
statutes of limitations elapsed, and failed to raise a triable dispute as to whether
equitable tolling applied. See Cal. Civ. Proc. Code §§ 335.1, 338 (the statute of
limitations is two years for personal injury actions and three years for fraud
actions); id. at § 352.1(a) (if a person is imprisoned on a criminal charge when a
cause of action accrues, the applicable statute of limitations is tolled for up to two
years during imprisonment).
The district court did not abuse its discretion in denying Bhatia’s motion to
expedite discovery because Fed. R. Civ. P. 26(f) is inapplicable to pro se prisoner
actions, and because Bhatia failed to serve discovery requests or meet and confer
with defendants before filing his motion. See Fed. R. Civ. P. 26(a)(1)(B) (“an
action brought without an attorney by a person in the custody of the United States,
a state, or a state subdivision” is exempt from the initial disclosure requirement);
Fed. R. Civ. P. 37(a) (establishing the meet-and-confer requirement and
circumstances warranting the filing of a motion to compel); Preminger v. Peake,
552 F.3d 757, 768 n.10 (9th Cir. 2008) (standard of review).
The district court did not abuse its discretion by denying defendants’ motion
for entry of a vexatious litigant order against Bhatia because the proposed order
was not narrowly tailored to prevent Bhatia’s abusive behavior. See De Long, 912
3 10-17089
F.2d at 1148 (pre-filing orders must be narrowly tailored to problem at issue).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, nor 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).
The parties’ motions for judicial notice are granted, and defendants’ request
to strike Bhatia’s reply brief is denied.
Bhatia’s remaining contentions, including those concerning his motion for
leave to reconsider a discovery order and his motion to commence disciplinary
proceedings, are unpersuasive.
AFFIRMED.
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