Robert Ross v. Shaquille O'Neal , 525 F. App'x 600 ( 2013 )

NOT FOR PUBLICATION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
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would offend the Commerce Clause and Ross’s suit was properly dismissed
because it was untimely.
AFFIRMED.
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