Bright Harry v. Kcg Americas LLC

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIGHT HARRY, No. 19-15013
Plaintiff-Appellant, D.C. No. 4:17-cv-02385-HSG
v.
MEMORANDUM*
KCG AMERICAS LLC; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Submitted May 6, 2020**
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
Bright Harry appeals pro se from the district court’s judgment dismissing for
lack of standing his action alleging claims under the Commodity Exchange Act, 7
U.S.C. §§ 1 et seq. (“CEA”) and state law. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Fleck and Assocs., Inc. v. City of Phoenix, 471 F.3d
*
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).
1100, 1103 (9th Cir. 2006). We affirm.
The district court properly dismissed Harry’s action for lack of standing
because Harry failed to allege he suffered any injury. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (holding that to demonstrate standing a plaintiff
must allege he has suffered an “injury in fact” that is “concrete and
particularized”); see also Davis v. Yageo Corp., 481 F.3d 661, 678 (9th Cir. 2007)
(“[W]hether or not [plaintiff] was the real-party-in-interest, it does not have
standing, and it cannot cure its standing problem through an invocation of Fed. R.
Civ. P. 17(a).”).
The district court did not abuse its discretion by denying Harry’s motion to
consolidate. See Pierce v. County of Orange, 526 F.3d 1190, 1203 (9th Cir. 2008)
(setting forth the standard of review); Huene v. United States, 743 F.2d 703, 704
(9th Cir. 1984) (setting forth the factors a district court should weigh in a motion
for consolidation).
The district court did not abuse its discretion by denying Harry’s motion to
stay the case because Harry failed to demonstrate he would experience any
inequity absent the stay. See Lockyer v. Mirant Corp., 398 F.3d 1098, 1105, 1110
(9th Cir. 2005) (setting forth standard of review and factors that a district court
must weigh when granting or denying a stay).
We do not consider matters not specifically and distinctly raised and argued
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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).
We do not consider documents not presented to the district court. See
United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).
Harry’s request to file a supplemental opening brief (Docket Entry No. 45) is
granted. The supplemental brief has been filed at Docket Entry No. 45.
AFFIRMED.
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FILED
Harry v. KCG Americas LLC, et al., No. 19-15013 MAY 20 2020
MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, concurring: U.S. COURT OF APPEALS
I would hold that Harry has standing to pursue this case, but that the statute
of limitations had run before suit was filed.
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