NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROY A. DAY, No. 16-35195
Plaintiff-Appellant, D.C. No. 2:13-cv-00478-RSM
v.
MEMORANDUM*
MICROSOFT CORPORATION; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief Judge, Presiding
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Roy A. Day appeals pro se from the district court’s judgment dismissing for
failure to prosecute his diversity action alleging claims arising from his use of
Microsoft software and applications. We have jurisdiction under 28 U.S.C.
§ 1291. We review for an abuse of discretion. Al-Torki v. Kaempen, 78 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).
1381, 1384 (9th Cir. 1996). We affirm.
The district court did not abuse its discretion by dismissing Day’s action
after Day failed to commence arbitration proceedings for two years following the
district court’s order compelling Day to arbitrate his claims. See id. (discussing the
five factors for determining whether to dismiss under Fed. R. Civ. P. 41(b) for
failure to prosecute); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)
(although dismissal is a harsh penalty, the district court’s dismissal should not be
disturbed absent “a definite and firm conviction” that it “committed a clear error of
judgment” (citation and internal quotation marks omitted)).
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 16-35195