                                                                             FILED
                            NOT FOR PUBLICATION                              DEC 18 2014

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



                             FOR THE NINTH CIRCUIT


KURT HUY PHAM,                                    No. 13-15756

               Plaintiff - Appellant,             D.C. No. 3:12-cv-06374-EMC

  v.
                                                  MEMORANDUM*
FINANCIAL INDUSTRY
REGULATORY AUTHORITY, INC.; et
al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward M. Chen, District Judge, Presiding

                            Submitted December 9, 2014**

Before:        WALLACE, LEAVY, and BYBEE, Circuit Judges.

       Kurt Huy Pham appeals pro se from the district court’s judgment dismissing

his action seeking to vacate an arbitration award against him in a securities action.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Hebbe

v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm.

      The district court properly dismissed Pham’s action because Pham did not

timely serve his petition to vacate the arbitration award. See Cal. Civ. Proc. Code

§ 1288 (“A petition to vacate an award or to correct an award shall be served and

filed not later than 100 days after the date of the service of a signed copy of the

award on the petitioner.”). Contrary to Pham’s contentions, Pham was not entitled

to tolling because he did not voluntarily pursue internal remedies, and did not show

that he was sufficiently incapacitated for tolling to apply. See McDonald v.

Antelope Valley Cmty. Coll. Dist., 194 P.3d 1026, 1032-34 (Cal. 2008) (concluding

that equitable tolling applies to the voluntary pursuit of internal remedies); Tzolov

v. Int’l Jet Leasing, Inc., 283 Cal. Rptr. 314, 315 (Ct. App. 1991) (tolling statute of

limitations where an “individual has been injured so severely as to be rendered

incapable of caring for [his or her] property or transacting business, or

understanding the nature or effects of [his or her] acts” (citations and internal

quotation marks omitted)).

      We reject Pham’s contentions regarding the merits of his motions for

reconsideration and for a new trial.

      We do not consider matters not specifically and distinctly raised and argued


                                           2                                        13-15756
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) (per curiam).

      AFFIRMED.




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