Brian Malnes v. Bayerische Motoren Werke Ag ( 2016 )

FILED
NOT FOR PUBLICATION DEC 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN EDWARD MALNES, No. 14-16296
Plaintiff-Appellant, D.C. No. 3:13-cv-08211-MHB
v.
MEMORANDUM*
BAYERISCHE MOTOREN WERKE AG,
(BMW AG); et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Michelle H. Burns, Magistrate Judge, Presiding**
Submitted December 14, 2016***
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Brian Edward Malnes appeals pro se from the district court’s judgment in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Malnes consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Malnes’
request for oral argument, set forth in his reply brief, is denied.
his action alleging violations of federal and state law related to his car battery. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s
dismissal of the complaint for failure to state a claim under Fed. R. Civ. P.
12(b)(6). Gingery v. City of Glendale, 831 F.3d 1222, 1226 (9th Cir. 2016). We
may affirm on any basis fairly supported by the record. Lake Wash. Sch. Dist. No.
414 v. Office of Superintendent of Pub. Instruction, 634 F.3d 1065, 1067 (9th Cir.
2011). We affirm.
Dismissal of Malnes’ action was proper because venue in the District of
Arizona was improper. Malnes has not established that all defendants are residents
of Arizona or that “a substantial part of the events or omissions giving rise to [his]
claim[s]” occurred in Arizona. 28 U.S.C. § 1391(b)(1) & (2) (describing where a
civil action may be brought).
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.
2 14-16296