Erlinda Dominguez v. Roy Chang

FILED
NOT FOR PUBLICATION MAY 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ERLINDA DOMINGUEZ, No. 11-15099
Plaintiff - Appellant, D.C. No. 1:10-cv-00094-SOM-
BMK
v.
ROY CHANG; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief Judge, Presiding
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Erlinda Dominguez, an attorney, appeals pro se from the district court’s
judgment dismissing her diversity action alleging legal malpractice against her
former attorneys. We have jurisdiction under 28 U.S.C. § 1291. We review de
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
novo. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004). We
affirm.
The district court properly dismissed Counts I through III, and the part of
Count IV that was premised on pre-judgment conduct, as time-barred because
Dominguez filed this action more than six years after she knew or should have
known of defendants’ purported negligence. See Blair v. Ing, 21 P.3d 452, 469 &
n.12, 472 (Haw. 2001) (under Hawaii law, a six-year statute of limitations applies
to legal malpractice claims, and the statute begins to run when the plaintiff knew or
should have known of the defendant’s negligence); see also Carvalho v.
Raybestos-Manhattan, Inc., 794 F.2d 454, 456 (9th Cir. 1986) (“A cause of action
accrues under Hawaii law when the plaintiff knows, or through the exercise of
reasonable diligence should know, of his injury, the defendant’s negligence (or
violation of a duty), and the causal connection between the two.”).
The district court properly dismissed the remainder of Count IV because
Dominguez failed to allege sufficient facts to show that defendants’ post-judgment
conduct amounted to legal malpractice. See Thomas v. Kidani, 267 P.3d 1230,
1234 (Haw. 2011) (setting forth the elements of a legal malpractice claim under
Hawaii law and discussing causation).
The district court did not abuse its discretion by declining to apply the law of
2 11-15099
the case doctrine to the motion to dismiss because the issues in question were not
decided explicitly or by necessary implication in the order granting Dominguez
leave to file the first amended complaint. See United States v. Lummi Indian Tribe,
235 F.3d 443, 452-53 (9th Cir. 2000) (setting forth the standard of review and
discussing the law of the case doctrine).
Dominguez’s remaining contentions are unpersuasive.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)
(per curiam).
AFFIRMED.
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