                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 23 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


KENNETH W. PENDERS, II,                          No. 12-55544

              Plaintiff - Appellant,             D.C. No. 2:11-cv-08173-ODW-E

  v.
                                                 MEMORANDUM*
SEGA OF AMERICA, INC.;
ELECTRONIC ARTS, INC.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                    Otis D. Wright, District Judge, Presiding

                      Argued and Submitted October 11, 2013
                               Pasadena, California

Before: PREGERSON and TALLMAN, Circuit Judges, and SIMON, District
Judge.**

       Kenneth W. Penders, II (“Penders”) appeals the district court’s dismissal

without prejudice of his claims against SEGA of America, Inc. (“SEGA”) and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Michael H. Simon, District Judge for the U.S. District
Court for the District of Oregon, sitting by designation.
Electronic Arts, Inc. (“EA”) for copyright infringement and related claims arising

out of SEGA’s and EA’s alleged use of Penders’s copyrighted “Sonic the

Hedgehog” creations, particularly in the Sonic Chronicles: The Dark Brotherhood

video game. Penders argues on appeal that the district court improperly applied the

first-to-file rule and that the court should have stayed, rather than dismissed, the

case. We have jurisdiction under 28 U.S.C. § 1291.

      The district court properly exercised its discretion when it applied the first-

to-file rule. See Alltrade, Inc. v. Uniweld Prods. Inc., 946 F.2d 622, 625 (9th Cir.

1991). Chronology, similarity of parties, and similarity of issues all support that

discretionary ruling. See id.

      Penders failed to apprise the district court why dismissal would negatively

impact his potential monetary award. Because the district court was not informed

of this, it did not abuse its discretion when it chose to dismiss without prejudice,

rather than stay, the Second California Action.

      AFFIRMED. Each party shall bear its own costs on appeal.




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