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 2016-11

Richard Breinholt v. Popular Warehouse Lender , 670 F. App'x 566 ( 2016 )


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  •                            NOT FOR PUBLICATION                            FILED
UNITED STATES COURT OF APPEALS                         NOV 7 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD WILLIAM BREINHOLT;                       No. 13-35220
SUSAN LYN BREINHOLT,
D.C. No.
Plaintiffs-Appellants,           1:10-cv-00587-EJL-LMB
v.
MEMORANDUM*
POPULAR WAREHOUSE LENDER; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted October 25, 2016**
Before:      LEAVY, SILVERMAN, and GRABER, Circuit Judges.
Richard William Breinholt and Susan Lyn Breinholt appeal pro se from the
district court’s judgment dismissing their action alleging federal and state law
*
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).
foreclosure-related claims. We have jurisdiction under
    28 U.S.C. § 1291
    . We
review de novo a district court’s dismissal under Federal Rule of Civil Procedure
12(b)(6). Cervantes v. Countrywide Home Loans, Inc.,
    656 F.3d 1034
    , 1040-41
(9th Cir. 2011). We may affirm on any ground supported by the record. Cigna
Prop. & Cas. Ins. Co. v. Polaris Pictures Corp.,
    159 F.3d 412
    , 418 (9th Cir. 1998).
We affirm.
The district court properly dismissed the Breinholts’ claims against
defendant OneWest Bank, FSB, as barred by the doctrine of res judicata because
Breinholts’ claims were raised, or could have been raised, in a prior state court
action between the parties that resulted in a final judgment on the merits. See
Pocatello Hosp., LLC v. Quail Ridge Med. Investor, LLC,
    339 P.3d 1136
    , 1142
(Idaho 2014) (stating elements of res judicata under Idaho law and holding that res
judicata bars litigation of claims that were, or could have been, raised in the prior
action); see also Holcombe v. Hosmer,
    477 F.3d 1094
    , 1097 (9th Cir. 2007)
(federal courts must apply state law regarding res judicata to state court
judgments).
The district court properly dismissed the Breinholts’ claims against TitleOne
Corporation because the Breinholts failed to allege facts sufficient to state any
plausible claim for relief. See Hebbe v. Pliler,
    627 F.3d 338
    , 341-42 (9th Cir.
2010) (although pro se pleadings are to be construed liberally, a plaintiff must
2                                    13-35220
present factual allegations sufficient to state a plausible claim for relief).
Dismissal of the Breinholts’ claims against Mortgage Electronic Registration
Systems, Inc. (“MERS”) was proper because the Breinholts failed to allege facts
sufficient to state any plausible claim for relief. See id.; Sparling v. Hoffman
Constr. Co.,
    864 F.2d 635
    , 638 (9th Cir. 1988) (trial court may sua sponte dismiss
for failure to state a claim without notice or an opportunity to respond where “the
plaintiffs cannot possibly win relief” (alteration, citation and internal quotation
marks omitted)); see also Cervantes,
    656 F.3d at 1038-44
     (explaining the recording
system and rejecting challenges to its validity); Edwards v. Mortg. Elec.
Registration Sys., Inc.,
    300 P.3d 43
    , 49 (Idaho 2013) (“[H]aving MERS the named
beneficiary as nominee for the lender conforms to the requirements of a deed of
trust under Idaho law.”).
The district court did not abuse its discretion by denying the Breinholts’
motion for relief under Federal Rule of Civil Procedure 60(b) because the
Breinholts failed to demonstrate any grounds for such relief. See Sch. Dist. No. 1J,
Multnomah Cty., Or. v. ACandS, Inc.,
    5 F.3d 1255
    , 1262-63 (9th Cir. 1993)
(setting forth standard of review and listing grounds warranting reconsideration
under Fed. R. Civ. P. 60(b)).
The district court did not abuse its discretion by awarding attorney’s fees to
Transnation Title & Escrow, Inc. See Vess v. Ciba-Geigy Corp.,
    317 F.3d 1097
    ,
3                                    13-35220
1102 (9th Cir. 2003) (setting forth standard of review).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright,
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009).
The Breinholts’ motion to remand the case, filed on October 4, 2013, is
denied.
AFFIRMED.
4                                       13-35220