                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 24 2013

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

ROBERT ROSS, an individual,                      No. 11-56984

              Plaintiff - Appellant,             D.C. No. 2:11-cv-06124-JHN-E

  v.
                                                 MEMORANDUM*
SHAQUILLE O’NEAL, an individual,

              Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                 Jacqueline H. NGUYEN, District Judge, Presiding

                        Argued and Submitted May 9, 2013
                              Pasadena, California

Before: WARDLAW and MURGUIA, Circuit Judges, and RESTANI, Judge.**

       Plaintiff Robert Ross appeals the dismissal of his complaint against former

NBA player Shaquille O’Neal. The complaint alleged that O’Neal failed to honor

an oral contract and then recruited a street gang to kidnap Ross. The district court


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
dismissed the complaint because it was filed after the statute of limitations had

expired. The district court also concluded that California Code of Civil Procedure

section 351, which tolls the statute of limitations when a defendant is out of the

state, was unconstitutional as applied to O’Neal because it placed an unreasonable

burden on interstate commerce. We affirm.

      Because Ross concedes that his complaint is untimely, his only shot of

success on appeal is based on tolling the statute of limitations pursuant to section

351 of the California Code of Civil Procedure, which reads:

      If, when the cause of action accrues against a person, he is out of the
      State, the action may be commenced within the term herein limited, after
      his return to the State, and if, after the cause of action accrues, he departs
      from the State, the time of his absence is not part of the time limited for
      the commencement of the action.

We evaluate the constitutionality of such tolling statutes by comparing the “burden

the tolling statute places on interstate commerce” with “the interests of the State.”

Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 891 (1988); see

also Abramson v. Brownstein, 897 F.2d 389, 392 (9th Cir. 1990).

      In this case, section 351 imposes a substantial burden on interstate

commerce. No speculation is needed to reach this conclusion; the district court

took judicial notice, without objection, of the fact that O’Neal was employed by

the Miami Heat, Phoenix Suns, Cleveland Cavaliers, and Boston Celtics during the


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relevant time period. Requiring a National Basketball Association player who is

engaged in interstate commerce to be physically present in California places a

substantial burden on interstate commerce. See Abramson, 897 F.2d at 392

(“[T]he statute requires a person engaged in interstate commerce outside of

California to be in California for the appropriate limitations period in order to

avoid the application of the tolling statute.”). O’Neal’s injuries and playing time

are legally irrelevant; even if it was physically possible for him to be in California

on certain days, forcing him to do so would still constitute a burden on interstate

commerce. See id.

      California’s interest in ensuring Ross’s ability to vindicate any claim against

O’Neal is minimal because Ross could have served O’Neal pursuant to

California’s long-arm statute. See Abramson, 897 F.2d at 393 n.7. The interest is

further diminished by the fact that O’Neal’s status as a professional basketball

player required him to make numerous publicly promoted trips to the state of

California and, with very minimal diligence, Ross could have personally served

O’Neal while O’Neal was present in California.

      The burden on interstate commerce as applied to O’Neal is substantial and

the countervailing interest is minimal. Application of section 351 in this case




                                     Page 3 of 4
would offend the Commerce Clause and Ross’s suit was properly dismissed

because it was untimely.

      AFFIRMED.




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