James Drury v. Barcelona Holdings, LLC ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 5 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES ROBERT DRURY, No. 17-17217
Plaintiff-Appellant, D.C. No. 2:15-cv-02048-CWH
v.
MEMORANDUM*
BARCELONA HOLDINGS, LLC, DBA
Siegel Slots and Suites; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Carl W. Hoffman, Magistrate Judge, Presiding**
Submitted March 1, 2019***
Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.
James Robert Drury appeals pro se from the district court’s summary
judgment in his diversity action alleging state law tort claims arising from a dispute
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
over the allocation of municipally imposed taxes. We have jurisdiction under 28
U.S.C. § 1291. We review de novo, and we may affirm on any grounds supported
by the record. Shanks v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008). We affirm.
Summary judgment was proper on Drury’s claims based on his purported
entitlement to tax refunds under Clark County Code § 4.08 because Drury failed to
raise a genuine dispute of material fact as to whether he was entitled to the funds as
a result of defendants’ purported overpayment of the county’s transient lodging
tax. See Clark County Code § 4.08.010(b), (c) (transient lodging tax constitutes a
debt owed by lodging establishment whether or not establishment passes cost on to
guests).
The district court properly granted summary judgment on Drury’s claim for
“retaliatory eviction” under Nev. Rev. Stat. § 118A.510 because Drury failed to
raise a genuine dispute of material fact as to whether Drury suffered damages for
which the statute provides a remedy. See Nev. Rev. Stat. §§ 118A.390,
118A.510(2) (identifying remedies available to tenant for landlord’s violation of
§ 118A.510(1)); Paullin v. Sutton, 724 P.2d 749, 751 (Nev. 1986) (punitive
damages not recoverable on retaliatory eviction claim).
The district court did not abuse its discretion by denying Drury’s requests
for entry of default and default judgment under Fed. R. Civ. P. 55 because
defendants appeared and timely filed documents indicating an intent to defend
2 17-17217
themselves in the action. See Fed. R. Civ. P. 55(a) (permitting the entry of default
only when a defendant “has failed to plead or otherwise defend”); Direct Mail
Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 689 (9th Cir.
1988) (default judgment inappropriate if defendant indicates its intent to defend the
action); see also Eitel v. McCool, 782 F.2d 1470, 1471- 72 (9th Cir. 1986) (setting
forth standard of review and discussing process for obtaining default judgment).
We do not consider arguments raised for the first time on appeal or 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).
Drury’s arguments on his behalf are meritless to the point of being frivolous.
The district court’s decisions were supported by the record and correct in all
respects.
Drury’s request for judicial notice and motion for “pacer access and fee
waiver” (Docket Entry Nos. 14, 24) are denied.
AFFIRMED.
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