NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
ETOPIA EVANS, as the Representative of the Estate of Charles Evans; ERIC KING; ROBERT MASSEY; TROY SADOWSKI; CHRISTOPHER GOODE; DARRYL ASHMORE; GERALD WUNSCH; ALPHONSO CARREKER; STEVEN LOFTON; DURIEL HARRIS; JEFFREY GRAHAM; CEDRIC KILLINGS; REGINALD WALKER ,

Plaintiffs

- Appellants,

v.
ARIZONA CARDINALS FOOTBALL CLUB, LLC; ATLANTA FALCONS FOOTBALL CLUB LLC; BUCCANEERS, LP; BUFFALO BILLS, INC.; CHARGERS FOOTBALL COMPANY LLC; CINCINNATI BENGALS, INC.; CLEVELAND BROWNS FOOTBALL COMPANY, LLC; DAL LAS COWBOYS FOOTBALL CLUB, LTD.; FOOTBALL NORTHWEST LLC, DBA Seattle Seahawks; FORTY NINERS FOOTBALL COMPANY LLC; GREEN BAY PACKERS, INC.; HOUSTON NFL HOLDINGS, LP, DBA Houston Texans; INDIANAPOLIS COLTS, INC.; JACKSONVILLE JAGUARS LLC; No. 17

- 16693

D.C. No. 3:16

- cv
- 01030

- WHA

MEMORANDUM *

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

FEB 6 2019
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

KANSAS CITY CHIEFS FOOTBALL CLUB, INC.; MIAMI DOLPHINS, LTD.; MINNESOTA VIKINGS FOOTBALL CLUB, LLC; NEW ENGLAND PATRIOTS LLC; NEW ORLEANS LOUISIANA SAINTS, LLC; NEW YORK FOOTBALL GIANTS, INC.; NEW YORK JETS, LLC; PDB SPORTS LTD., DBA Denver Broncos; PANTHERS FOOTBALL, LLC, D BA Carolina Panthers; PHILADELPHIA EAGLES LLC; PITTSBURGH STEELERS SPORTS, INC.; PRO

- FOOTBALL, INC., DBA Washington Redskins; TENNESSEE FOOTBALL, INC.; CHICAGO BEARS FOOTBALL CLUB, INC.; THE DETROIT LIONS, INC.; OAKLAND RAIDERS, LP; THE LOS ANGELES RAMS LL C; BALTIMORE RAVENS, LP,

Defendants

- Appellees.
Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding Argued and Submitted December 19, 2018 San Francisco, California Before: CALLAHAN, N.R. SMITH, and MURGUIA, Circuit Judges. This case arises from a suit brought by former players an d the estate of a former player of the National Football League (“NFL”) , accu sing the NFL of perpetuating a “return

- to

- play” scheme in which players were allegedly
administered numerous medications and pressured to continue playing , despite3

having suffered physical injuries that had yet to fully heal

. 1 After filing their initial

co mplaint, plaintiffs amended their complaint i n November 2016 to include a cause of action under the Racketeer Influenced and Corrupt Organizations Act (“RICO” ) . The district court subsequently dismissed plaintiffs’ RICO claim as time
barred and entered a f

inal judgment

. 2 Plaintiffs appealed. 3 A district court’s dismissal on statute of limitations grounds is reviewed de novo

. Donoghue v. Orange Cty. , 848 F.2d 926, 929 (9th Cir. 1989). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. The statute of limitations for a civil RICO claim is four years. Grimmett v.

Brown , 75 F.3d 506, 510 (9th Cir. 1996). Plaintiffs argu e that their civil RICO
claim was timely because their RICO claim did not begin to accrue until March

2014 when plaintiffs allegedly first learned of defendants’ fraudulent scheme ( i.e. , that their claims are subject to the injury and pattern discovery rule)

. Plaintiffs’ argument is barred by the Supreme Court’s holding in Rotella v. Wood , 528 U.S. 549, 555 (2000). In Rotella , the Court rejected the “injury and pattern discovery”

1 We assume the parties’ familiarity with the facts and procedural history.

2 The district court dismissed all of Plaintiffs’ other claims on Defendants’ motions to dismiss and for summary judgment.

3 Plaintiffs failed to raise in their opening brief any arguments concerning the dismissal of their conspiracy claim, and accordingly, we deem s uch arguments waived on appeal. Tri

- Valley CAREs v. U.S. Dep’t of Energy , 671 F.3d 1113, 1129

– 30 (9th Cir. 2012) (citations o mitted).4

rule instead holding, “we have been at pains to explain that a discovery of the
injury , not discovery of the other elements of a claim, is what starts the clock [for civil RICO claims].” Id. (emphasis added). Even prior to Rotella , t his Circuit has applied the “injury discovery” rule, which provides that “ the civil RICO limitations period begins to run when a plaintiff kno w s or should know of the injury that underlies his cause of action. ”

Grimmett , 75 F.3d at 510 ( internal quotation marks and citation omitted ) ; see also Pincay v. Andrews , 238 F.3d 1106, 1109 n.3 (9th Cir. 2001) (noting that Rotella “left our ‘injury discovery’ rule intact.”)

. Here , plaintiffs knew, or should have known, of their pr imary business injury

— that their careers had been “cut short”

— when their respective playing careers ended. All seven RICO plaintiffs alleged that
their careers ended prematurely after suffering significant physical injuries.

B ecause the most recent plainti ff’s NFL career ended in 2004 (Jerry Wunsch’s career), p laintiffs’ RICO claim expired at the latest in 2008 , approximately eight years before plaintiffs amended their complaint to include a RICO claim. The possibility that plaintiffs may have discovered th eir allegedly diminished post

- NFL
business prospects after 2004 does not render plaintiffs’ RICO claim timely

. See

Grimmett , 75 F.3d at 512

– 14 (limitations period begins to run as soon as plaintiff suffers any business injury unless a “new” injury is cause d by a “new and independent” act within the four

- year limitations period).5

Plaintiffs cite Living Designs, Inc. v. E.I. DuPont de Nemours & Co. , a post

Rotella case, for the proposition that a civil RICO claim instead begins to accrue when a plaintiff has actual or constructive knowledge of the fraud rather than the injury. See 431 F.3d 353, 365 (9th Cir. 2005). However, Living Designs is distinguishable. In that case, it was not until plaintiffs discovered defendant’s fraud that they discovered their injury. See id. at 364 (“The harm Plaintiffs allege is fraudulent inducement . . . .”). In this case, plaintiffs knew of their injury

— that
their careers had been “cut short”

— as soon as their careers ended due to physical

in juries. Therefore, the district court properly dismissed plaintiffs’ RICO claim as
time barred

. Plaintiffs also argue that their RICO claim should be equitably tolled due to
Defendants’ fraudulent concealment

. T o establish equitable tolling, a plaintiff must plead with particularly that the defendant actively misled her, and that she had neither actual nor constructive knowledge of the facts constituting her RICO claim despite her due diligence in trying to uncover those facts

. Grimmett , 75 F.3d at

514. H ere, plaintiffs fail ed to allege any facts, let alone with particularity, that they exercised due diligence in trying to uncover the facts giving rise to their RICO
claim. Plaintiffs ’ argument that defendants ’ doctors and trainers engaged in “passive condu ct,” namely the failure to disclose the consequences of taking

v a rious medications , which concealed from plaintiffs the existence of their RICO6

claim, likewise fails. Plaintiffs’ amended complaint is replete with allegations demonstrating plaintiffs’ knowledge of the facts on which their RICO claim is based, such as the receipt of pills on airplanes, in unmarked containers, and without prescriptions. Accordingly, plain tiffs’ RICO claim is untimely , and equitable tolling is not warranted

. 4

AFFIRMED.

4 Plaintiffs’ motion to supplement the record (No. 24) is DENIED as moot.