                                                                            FILED
                           NOT FOR PUBLICATION                              NOV 02 2016

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



                            FOR THE NINTH CIRCUIT


MICHAEL CALMESE,                                 No. 14-35569

              Plaintiff-Appellant,               D.C. No. 3:13-cv-01042-HU

 v.
                                                 MEMORANDUM*
ANTHONY E. McNAMER, Attorney,
OSB # 00138; OREGON STATE BAR
PROFESSIONAL LIABILITY FUND,

              Defendants-Appellees.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Marco A. Hernandez, District Judge, Presiding

                           Submitted October 25, 2016**

Before:      LEAVY, GRABER, and CHRISTEN, Circuit Judges.

      Michael Calmese appeals pro se from the district court’s judgment

dismissing his diversity action alleging legal malpractice in connection with

Anthony E. McNamer’s representation of Calmese in a trademark action. We have

      *
             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).
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). Lee v. City of Los

Angeles, 250 F.3d 668, 679 (9th Cir. 2001). We affirm.

      The district court properly dismissed Calmese’s action against McNamer as

barred by the statute of limitations. See Kaseberg v. Davis Wright Tremaine, LLP,

265 P.3d 777, 781-82 (Or. 2011) (two-year statute of limitations for legal

malpractice claims; the discovery rule postpones accrual until a plaintiff knows or

should have known of a substantial possibility that he was harmed by a lawyer’s

acts or omissions). Contrary to Calmese’s contention, he is not entitled to tolling

due to wrongful concealment. See Chaney v. Fields Chevrolet Co., 503 P.2d 1239,

1241 (Or. 1972) (wrongful concealment of facts that prevents discovery of a wrong

or knowledge of a cause of action will toll the statute of limitations).

      Dismissal without leave to file a Second Amended Complaint was proper

because amendment would have been futile. See CHoPP Computer Corp. v.

United States, 5 F.3d 1344, 1350 (9th Cir. 1993) (standard of review for implicit

denial of request for leave to amend; district court does not abuse its discretion

where amendment would have been futile).

      Calmese’s contentions that the district court failed to conduct a de novo

review of his objections and ignored evidence, he was tricked into changing his


                                           2                                    14-35569
motion to amend, and he should be able to re-file the original version of his

operative complaint, are unpersuasive.

      In light of our disposition, we do not consider Calmese’s contentions

regarding the merits of this action or the underlying trademark action, which was

addressed in a prior appeal. See Adidas Am., Inc. v. Calmese, 489 F. App’x 177

(9th Cir. 2012).

      Calmese’s motion to stay, filed on March 31, 2016, is denied.

      AFFIRMED.




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