                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 22 2016

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



                            FOR THE NINTH CIRCUIT


BRIAN EDWARD MALNES,                             No. 14-16296

              Plaintiff-Appellant,               D.C. No. 3:13-cv-08211-MHB

 v.
                                                 MEMORANDUM*
BAYERISCHE MOTOREN WERKE AG,
(BMW AG); et al.,

              Defendants-Appellees.


                  Appeal from the United States District Court
                           for the District of Arizona
                 Michelle H. Burns, Magistrate Judge, Presiding**

                          Submitted December 14, 2016***

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

      Brian Edward Malnes appeals pro se from the district court’s judgment in


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            Malnes consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
      ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Malnes’
request for oral argument, set forth in his reply brief, is denied.
his action alleging violations of federal and state law related to his car battery. We

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

dismissal of the complaint for failure to state a claim under Fed. R. Civ. P.

12(b)(6). Gingery v. City of Glendale, 831 F.3d 1222, 1226 (9th Cir. 2016). We

may affirm on any basis fairly supported by the record. Lake Wash. Sch. Dist. No.

414 v. Office of Superintendent of Pub. Instruction, 634 F.3d 1065, 1067 (9th Cir.

2011). We affirm.

      Dismissal of Malnes’ action was proper because venue in the District of

Arizona was improper. Malnes has not established that all defendants are residents

of Arizona or that “a substantial part of the events or omissions giving rise to [his]

claim[s]” occurred in Arizona. 28 U.S.C. § 1391(b)(1) & (2) (describing where a

civil action may be brought).

      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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