R. Alexander Acosta v. Matthew Hutcheson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
R. ALEXANDER ACOSTA*,
Plaintiff-Appellee,
v.
MATTHEW HUTCHESON,
Defendant-Appellant.
No. 17-35076
D.C. No. 1:12-cv-00236-EJL
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted January 16, 2018**
Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.
Matthew Hutcheson appeals pro se from the district court’s summary
judgment in the U.S. Secretary of Labor’s action against him, alleging violations of
the Employee Retirement Income Security Act of 1974 (“ERISA”). We have
* R. Alexander Acosta has been substituted for his predecessor Thomas
Perez as Secretary of Labor under Fed. R. App. P. 43(c)(2).
** This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 28 U.S.C. § 1291. We review de novo, Columbia Pictures
Indus., Inc. v. Fung, 710 F.3d 1020, 1030 (9th Cir. 2013), and we affirm.
The district court properly granted summary judgment because Hutcheson
failed to raise a genuine dispute of material fact as to whether he engaged in a
prohibited transaction under ERISA in violation of his fiduciary duties. See 29
U.S.C. §§ 1104, 1106; see also United States v. Hutcheson, 603 Fed. App’x 613,
614 (9th Cir. 2015) (affirming, inter alia, Hutcheson’s conviction for wire fraud
counts related to the ERISA-covered plans at issue in this action).
To the extent Hutcheson’s “motion for declaratory relief” or request for an
evidentiary hearing may be construed as requests to take discovery in order to
oppose summary judgment, Hutcheson failed to comply with the requirements of
Federal Rule of Civil Procedure 56(d). See Fed. R. Civ. P. 56(d); Tatum v. City &
County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006) (a party seeking
additional time for discovery is required to “identify by affidavit the specific facts
that further discovery would reveal, and explain why those facts would preclude
summary judgment”).
We reject as without merit Hutcheson’s contentions that the district court
erred by granting summary judgment notwithstanding his pending motion under 28
U.S.C. § 2255, and that the double jeopardy clause applies to this action.
We do not consider issues or arguments not specifically and distinctly raised

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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); United
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not
presented to the district court are not part of the record on appeal.”).
Hutcheson’s request for judicial notice (Docket Entry No. 19) is denied.
AFFIRMED.

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