Yuri Lee v. Select Portfolio Serv., Inc. ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: No. 19-55020
YURI LEE, D.C. No. 2:18-cv-06851-JFW
Debtor.
MEMORANDUM*
------------------------------
YURI LEE,
Appellant,
v.
SELECT PORTFOLIO SERVICING, INC.;
WAMU MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-AR12
TRUST,
Appellees.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted October 15, 2019**
*
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).
Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.
Chapter 13 debtor Yuri Lee appeals pro se from the district court’s judgment
affirming the bankruptcy court’s order dismissing Lee’s adversary proceeding. We
have jurisdiction under 28 U.S.C. § 158(d). We review de novo a district court’s
decision on appeal from a bankruptcy court, and apply the same standards of
review the district court applied to the bankruptcy court’s decision. Christensen v.
Tucson Estates, Inc. (In re Tucson Estates, Inc.), 912 F.2d 1162, 1166 (9th Cir.
1990). We may affirm on any ground supported by the record. Shanks v. Dressel,
540 F.3d 1082, 1086 (9th Cir. 2008). We affirm.
The bankruptcy court did not abuse its discretion by retaining jurisdiction
over Lee’s adversary proceeding after granting Lee’s motion for voluntary
dismissal of the bankruptcy case. See Carraher v. Morgan Elecs., Inc. (In re
Carraher), 971 F.2d 327, 328 (9th Cir. 1992) (setting forth standard of review and
explaining that the bankruptcy court may retain jurisdiction over a related
proceeding after dismissal of the bankruptcy case, subject to considerations of
judicial economy, fairness, convenience and comity).
Dismissal of Lee’s adversary action was proper because Lee failed to allege
facts sufficient to state a plausible claim for relief. See Fed. R. Civ. P. 12(b)(6);
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
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plausible on its face” (citation and internal quotation marks omitted)). Contrary to
Lee’s contention, the bankruptcy court was not required to state findings or
conclusions in its dismissal order. See Fed. R. Civ. P. 52(a)(3) (“The court is not
required to state findings or conclusions when ruling on a motion under Rule 12
. . . .”); Fed. R. Bankr. P. 7052 (providing that Federal Rule of Civil Procedure 52
applies in adversary proceedings); Mitchell v. Occidental Ins., Medicare, 619 F.2d
28, 30 (9th Cir. 1980) (under Federal Rule of Civil Procedure 52, “no findings [of
fact and law] are necessary in judgments on motions to dismiss”).
The bankruptcy court did not abuse its discretion by dismissing Lee’s action
without leave to amend because amendment would have been futile. See
Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (setting
forth standard of review and explaining that the court need not grant leave to
amend if amendment would be futile).
We reject as unsupported by the record Lee’s contention that the removal of
her action to federal court was improper. See 28 U.S.C. § 1446(c) (the deadline to
file a notice of removal is 30 days after defendant is served with a summons and
complaint); Cal. Code Civ. Pro. § 415.30 (providing that service of a summons
pursuant to that section is complete on the date a written acknowledgment of
receipt of summons is executed); Cal. Code Civ. Pro. § 415.40 (providing that
service of summons is complete on the tenth day after the mailing pursuant to that
3 19-55020
section).
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).
AFFIRMED.
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