Jon Beyer v. Bank of America, Na , 695 F. App'x 238 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JON CHARLES BEYER; SHELLEY No. 15-35586
BEYER,
D.C. No. 3:10-cv-00523-MO
Plaintiffs-Appellants,
v. MEMORANDUM*
BANK OF AMERICA, N.A.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Jon Charles Beyer and Shelley Beyer appeal pro se from the district court’s
judgment dismissing their diversity action arising from foreclosure proceedings
and denying them leave to amend. We have jurisdiction pursuant to 28 U.S.C. §
1291. We review de novo a dismissal for lack of subject matter jurisdiction. Chen
*
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).
v. Allstate Ins. Co., 819 F.3d 1136, 1141 (9th Cir. 2016). We affirm.
The district court properly dismissed as moot the Beyers’ claims arising
from appellees’ non-judicial foreclosure, because, as appellees concede, no
foreclosure proceedings are currently pending against the Beyers’ home. See Or.
Rev. Stat. § 86.782(2)(a) (nonjudicial foreclosure sale may be postponed for not
more than 180 days); Arizonans for Official English v. Arizona, 520 U.S. 43, 67
(1997) (to qualify as a case fit for federal court adjudication, an actual controversy
must be extant at all stages of review).
Contrary to the Beyers’ contention, the Beyers do not state a claim for
damages in connection with the September 24, 2010 notice of default. See
Georgetown Realty, Inc. v. Home Ins. Co., 831 P.2d 7, 12 (Or. 1992) (en banc) (“If
the plaintiff’s claim is based solely on a breach of a provision in the contract,
which itself spells out the party’s obligation, then the remedy normally will be only
in contract . . . .”); MacLean & Assoc., Inc. v. Am. Guar. Life Ins. Co., 736 P.2d
586, 592 (Or. Ct. App. 1987) (“In order to recover damages for breach of contract,
the party seeking to recover must prove that it has substantially performed its own
obligations under the contract.” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion by denying the Beyers leave to
amend their first amended complaint because amendment would be futile. See
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)
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(setting forth standard of review); Uptown Heights Assoc. Ltd. P’ship v. Seafirst
Corp., 891 P.2d 639, 647 (Or. 1995) (en banc) (elements of tortious interference
with economic relations); Webb v. Clark, 546 P.2d 1078, 1080 (Or. 1976) (en
banc) (elements of actionable fraud); Slover v. Or. State Bd. of Clinical Soc.
Workers, 927 P.2d 1098, 1101 (Or. Ct. App. 1996) (elements of breach of
contract).
We do not consider claims raised for the first time on appeal. See Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.
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