                                                                            FILED
                             NOT FOR PUBLICATION                            OCT 12 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



DENNIS GALLIPEAU,                                No. 11-35696

               Plaintiff - Appellant,            D.C. No. 2:10-cv-01508-JCC

  v.
                                                 MEMORANDUM *
MICROSOFT CORPORATION,

               Defendant - Appellee.



                     Appeal from the United States District Court
                       for the Western District of Washington
                    John C. Coughenour, District Judge, Presiding

                             Submitted October 9, 2012 **

Before:        RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

       Dennis Gallipeau appeals pro se from the district court’s judgment

dismissing his diversity action against Microsoft Corporation. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismissal under Fed. R. Civ. P. 12(b)(6). Henry A. v. Willden, 678 F.3d 991, 998

(9th Cir. 2012). We affirm.

       The district court properly dismissed Gallipeau’s action because Gallipeau’s

allegations that Microsoft failed to instruct him on how to permanently delete files

from his computer, leading to his imprisonment for knowing possession of child

pornography, do not state a claim that is plausible on its face. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 570 (2007) (“Factual allegations must be enough to

raise a right to relief beyond the speculative level[.]”).

       The district court properly dismissed the case with prejudice. See Steckman

v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998) (explaining that a

dismissal with prejudice is proper where amendment would be “an exercise in

futility”).

       The district court did not abuse its discretion in denying Gallipeau’s motion

for reconsideration because Gallipeau’s late-filed opposition to the motion to

dismiss was considered by the court and did not present grounds for

reconsideration. See Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5
F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and grounds

warranting reconsideration).




                                            2                                    11-35696
      Gallipeau’s request in his opening brief that counsel should be appointed for

him on appeal is denied.

      AFFIRMED.




                                         3                                   11-35696
