Opinion
No. 14-17497
11-07-2016
CRATERS & FREIGHTERS, a Colorado corporation, Plaintiff-Appellee, v. KATHY BENZ; FRED R. BENZ, Defendants-Appellants, and DAISYCHAIN ENTERPRISES, a California corporation, DBA Freight and Crate, Defendant.
NOT FOR PUBLICATION
D.C. No. 4:09-cv-04531-CW MEMORANDUM Appeal from the United States District Court for the Northern District of California
Claudia Wilken, District Judge, Presiding Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Kathy and Fred R. Benz appeal pro se from the district court's post-judgment order denying their motion to dismiss this trademark infringement action and ordering joinder of the real party in interest. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the denial of a motion to dismiss. Chen v. Allstate Ins. Co., 819 F.3d 1136, 1141 (9th Cir. 2016). We affirm.
The district court properly denied the motion to dismiss because it had subject matter jurisdiction over the action. See 15 U.S.C. § 1121(a) (trademark jurisdiction); 28 U.S.C. § 1331 (federal question jurisdiction). To the extent that appellants claim that appellee lacked standing, their argument is unpersuasive.
The district court did not abuse its discretion by ordering Craters and Freighters Franchise Company, the real party in interest, to join the action. See Fed. R. Civ. P. 17(a)(3) ("The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action."); United States v. Bowen, 172 F.3d 682, 688 (9th Cir. 1999) (court reviews district court's decision regarding joinder for abuse of discretion); U.S. for Use & Benefit of Wulff v. CMA, Inc., 890 F.2d 1070, 1074 (9th Cir. 1989) ("The purpose of this portion of Rule 17(a) is to prevent forfeiture of an action when determination of the right party to sue is difficult or when an understandable mistake has been made.").
We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.