Scott Townley v. K. Fitzgerald

Jan 27, 2014
12-60001
Versions:

MEMORANDUM **

Retired General Charles E. Yeager appeals pro se from the district court‘s summary judgment in his diversity action alleging that defendants violated his common law right to privacy and other state and federal laws by using his image and a statement concerning him on Aviat Aircraft, Inc.‘s website. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir.2003), and we affirm.

The district court properly granted summary judgment because Yeager‘s claims, which arose in 2001 and 2003, were time-barred. See Cal. Bus. & Prof.Code § 17208 (four-year statute of limitations for unfair business practices claim); Cal. Civ.Proc.Code § 338(a), (d) (three-year state of limitations for actions upon a liability created by statute or for relief based on fraud or mistake); Yeager v. Bowlin, 693 F.3d 1076, 1081 (9th Cir.2012) (two-year statute of limitations for common law right to privacy and statutory right to publicity under Cal. Civ.Code § 3344 claims); Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 720 n. 17 (9th Cir.2004) (statute of limitations for Lanham Act false endorsement claims brought under 15 U.S.C. § 1125(a) is borrowed from the most analogous state law). Because Yeager‘s claims are time-barred, we do not consider his arguments concerning the merits of his claims.

Contrary to Yeager‘s contention, the image and statement at issue were not republished on Aviat‘s website. See Yeager, 693 F.3d at 1082 (“[U]nder California law, a statement on a website is not republished unless the statement itself is substantially altered or added to, or the website is directed to a new audience.“).

We do not consider arguments and allegations raised for the first time on appeal or in the reply brief. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir.2009) (per curiam).

AFFIRMED.

Scott C. Townley, Maple Valley, WA, pro se.

Stephanie Tashiro-Townley, Maple Valley, WA, pro se.

Jason Wilson-Aguilar, Senior Staff, Office Of K. Michael Fitzgerald Seattle, WA, for Appellee.

K. Michael Fitzgerald, Seattle, WA, pro se.

Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.

MEMORANDUM **

Scott C. Townley and Stephanie Tashiro-Townley appeal pro se from the Bankruptcy Appellate Panel‘s (“BAP“) judgment dismissing as moot their appeal from the bankruptcy court‘s order denying confirmation of their Chapter 13 plan and dismissing their case. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo a determination that an appeal from a bankruptcy court decision is moot. Nat‘l Mass Media Telecomm. Sys., Inc. v. Stanley (In re Nat‘l Mass Media Telecomm. Sys., Inc.), 152 F.3d 1178, 1180 (9th Cir.1998). We affirm.

The BAP properly dismissed the appeal as moot because the debtors failed to seek a stay of the foreclosure sale pending appeal. See Onouli-Kona Land Co. v. Estate of Richards (In re Onouli-Kona Land Co.), 846 F.2d 1170, 1171 (9th Cir.1988) (“Bankruptcy‘s mootness rule applies when an appellant has failed to obtain a stay from an order that permits a sale of a debtor‘s assets.“).

The debtors’ request, filed on March 9, 2012, that this court take judicial notice of a motion in another case is denied.

AFFIRMED.

Notes

*
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
**
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.