ROY DAY V. MICROSOFT CORPORATION, No. 16-35195 (9th Cir. 2017)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 21 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT ROY A. DAY, U.S. COURT OF APPEALS No. 16-35195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

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