                            NOT FOR PUBLICATION                           FILED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.




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