NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 6 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ETOPIA EVANS, as the Representative of No. 17-16693 the Estate of Charles Evans; ERIC KING; ROBERT MASSEY; TROY SADOWSKI; D.C. No. 3:16-cv-01030-WHA

CHRISTOPHER GOODE; DARRYL

ASHMORE; GERALD WUNSCH;

ALPHONSO CARREKER; STEVEN MEMORANDUM*

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; DALLAS 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;

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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, DBA

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 LLC;

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 and the estate of a

former player of the National Football League (“NFL”), accusing the NFL of

perpetuating a “return-to-play” scheme in which players were allegedly

administered numerous medications and pressured to continue playing, despite

2 having suffered physical injuries that had yet to fully heal.1 After filing their initial

complaint, plaintiffs amended their complaint in 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 final 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 argue 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 such arguments waived on appeal. Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1129–30 (9th Cir. 2012) (citations omitted).

3 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, this Circuit has applied the “injury discovery” rule,

which provides that “the civil RICO limitations period begins to run when a

plaintiff knows 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 primary 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.

Because the most recent plaintiff’s NFL career ended in 2004 (Jerry Wunsch’s

career), plaintiffs’ 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 their 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 caused by a “new and

independent” act within the four-year limitations period). 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

injuries. 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. To 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. Here, plaintiffs failed 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 conduct,” namely the failure to disclose the consequences of taking

various medications, which concealed from plaintiffs the existence of their RICO

5 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, plaintiffs’ 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.

6