Dale Harms v. Select Portfolio Serv., Inc. ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DALE NORMAN HARMS, No. 17-15635
Plaintiff-Appellant, D.C. No. 4:16-cv-01585-CW
v.
MEMORANDUM*
SELECT PORTFOLIO SERVICING, INC.;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Dale Norman Harms appeals pro se from the district court’s order dismissing
his action alleging Truth in Lending Act (“TILA”) and state law claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
dismissal for failure to state a claim under Federal Rule of Civil Procedure
*
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).
12(b)(6). Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009). We affirm.
The district court properly dismissed Harms’s TILA recission claim because
that claim was barred by the applicable statute of limitations. See 15 U.S.C.
§ 1635(f) (imposing three-year period to exercise right of rescission under TILA);
Jesinoski v. Countrywide Home Loans, Inc., 135 S.Ct. 790, 792 (2015) (a borrower
exercises his right of rescission by notifying the creditor of intent to rescind within
three years after the transaction is consummated); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion in denying Harms’s motion for
recusal because Harms failed to establish any ground for recusal. See United
States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012) (setting forth standard of
review and grounds for disqualification).
The district court did not abuse its discretion in granting defendants’ request
for judicial notice because the documents in questions were matters of public
record. See Fed. R. Evid. 201(b)(2); Lee v. City of Los Angeles, 250 F.3d 668, 689
(9th Cir. 2001) (standard of review). The district court did not abuse its discretion
in denying Harms’s request for judicial notice because the district court stated it
would consider the case law and authorities submitted by Harms in rendering a
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decision.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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