Summary
affirming dismissal without leave to amend where claim was time barred
Summary of this case from S.G. v. El Dorado Union High Sch. Dist.Opinion
No. 15-15225
11-07-2016
TIMOTHY WAYNE ARNETT, Plaintiff-Appellant, v. WALGREEN COMPANY, INC., Defendant-Appellee.
NOT FOR PUBLICATION
D.C. No. 1:13-cv-02066-LJO-MJS MEMORANDUM Appeal from the United States District Court for the Eastern District of California
Lawrence J. O'Neill, Chief Judge, Presiding Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Timothy Wayne Arnett appeals pro se from the district court's judgment dismissing his diversity action alleging medical malpractice and wrongful death claims. We have 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), Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 2004), and we affirm.
The district court properly dismissed Arnett's action because it was barred by the three-year statute of limitations and Arnett failed to plead facts demonstrating that tolling should apply. See Cal. Civ. Proc. Code § 340.5 (setting forth three-year statute of limitations and reasons why it may be tolled); see also Belton v. Bowers Ambulance Serv., 978 P.2d 591, 593 (Cal. 1999) ("No tolling provision outside of [those identified in section 340.5] can extend the three-year maximum time period that section 340.5 establishes.").
The district court did not abuse its discretion in dismissing Arnett's complaint without leave to amend because amendment would be futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and explaining that "a district court may dismiss without leave where . . . amendment would be futile").
Arnett's contention that the magistrate judge erred by not informing him of the statute of limitations issue is unpersuasive.
Arnett's pending motions are denied.
AFFIRMED.