Michael Calmese v. Anthony McNamer , 670 F. App'x 487 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 02 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL CALMESE, No. 14-35569
Plaintiff-Appellant, D.C. No. 3:13-cv-01042-HU
v.
MEMORANDUM*
ANTHONY E. McNAMER, Attorney,
OSB # 00138; OREGON STATE BAR
PROFESSIONAL LIABILITY FUND,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
Michael Calmese appeals pro se from the district court’s judgment
dismissing his diversity action alleging legal malpractice in connection with
Anthony E. McNamer’s representation of Calmese in a trademark action. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). Lee v. City of Los
Angeles, 250 F.3d 668, 679 (9th Cir. 2001). We affirm.
The district court properly dismissed Calmese’s action against McNamer as
barred by the statute of limitations. See Kaseberg v. Davis Wright Tremaine, LLP,
265 P.3d 777, 781-82 (Or. 2011) (two-year statute of limitations for legal
malpractice claims; the discovery rule postpones accrual until a plaintiff knows or
should have known of a substantial possibility that he was harmed by a lawyer’s
acts or omissions). Contrary to Calmese’s contention, he is not entitled to tolling
due to wrongful concealment. See Chaney v. Fields Chevrolet Co., 503 P.2d 1239,
1241 (Or. 1972) (wrongful concealment of facts that prevents discovery of a wrong
or knowledge of a cause of action will toll the statute of limitations).
Dismissal without leave to file a Second Amended Complaint was proper
because amendment would have been futile. See CHoPP Computer Corp. v.
United States, 5 F.3d 1344, 1350 (9th Cir. 1993) (standard of review for implicit
denial of request for leave to amend; district court does not abuse its discretion
where amendment would have been futile).
Calmese’s contentions that the district court failed to conduct a de novo
review of his objections and ignored evidence, he was tricked into changing his
2 14-35569
motion to amend, and he should be able to re-file the original version of his
operative complaint, are unpersuasive.
In light of our disposition, we do not consider Calmese’s contentions
regarding the merits of this action or the underlying trademark action, which was
addressed in a prior appeal. See Adidas Am., Inc. v. Calmese, 489 F. App’x 177
(9th Cir. 2012).
Calmese’s motion to stay, filed on March 31, 2016, is denied.
AFFIRMED.
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