Habon v. Mortgage Electronic Registration Systems, Inc. , 583 F. App'x 680 ( 2014 )

FILED
NOT FOR PUBLICATION JUL 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLIE G. HABON; JONATHAN No. 12-16391
PIERCE; JOSE PORTILLO; MARTHA
LOPEZ; DAVID STINNETT; TINA DC No. 3:10 cv-0191 RCJ
STINNETT,
Plaintiffs - Appellants, MEMORANDUM*
v.
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.;
LIME FINANCIAL; MLSG, INC.; E-
LOAN, INC.; WESTERN TITLE
COMPANY, INC.; STEWART TITLE
COMPANY; LENDERS FIRST CHOICE;
CHASE; NATIONAL CITY
MORTGAGE; EMC MORTGAGE, INC.;
LITTON LOAN SERVICING; BANK OF
AMERICA; NATIONAL DEFAULT
SERVICING CORPORATION;
FEDERAL HOME LOAN MORTGAGE
CORPORATION,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Robert Clive Jones, District Judge, Presiding
Submitted November 7, 2013**
San Francisco, California
Before: TASHIMA, W. FLETCHER, and NGUYEN, Circuit Judges.
Plaintiffs, homeowners whose home loans have fallen into default, appeal
the district court’s order dismissing their complaint under Federal Rule of Civil
Procedure 12(b)(6). We affirm.
1. Plaintiffs challenge the order of the Judicial Panel on Multidistrict
Litigation (the “JPML”) transferring this case to the U.S. District Court for the
District of Arizona (the “MDL Court”) and the MDL Court’s order interpreting the
JPML’s order. We lack jurisdiction to review the JPML’s order because Plaintiffs
have not sought a writ of mandamus. 28 U.S.C. § 1407(e); see Robinson v. Am.
Home Mortg. Servicing, Inc. (In re Mortg. Elec. Registration Sys., Inc.), No. 11-
17615, slip op. at __ (9th Cir., June 12, 2014). Plaintiffs waived their challenge to
the MDL Court’s order by not “specifically and distinctly” arguing it in their
opening brief. Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998). Even if the
argument were not waived, Plaintiffs have not shown that the district court abused
its discretion in its interpretation of the transfer order, see In re
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
2
Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1231 (9th Cir.
2006), or that their substantial rights were affected by the order, see 28 U.S.C. §
2111.
2. The district court properly dismissed Plaintiffs’ claim for unjust
enrichment, the only claim over which it had jurisdiction after the JPML split the
claims. Under Nevada law, unjust enrichment is not available when the parties had
an express, written contract. LeasePartners Corp. v. Robert L. Brooks Trust Dated
Nov. 12, 1975, 942 P.2d 182, 187 (Nev. 1997). Even if unjust enrichment is
available when an express contract is procured by fraud, Plaintiffs did not plead
fraud with particularity. See Fed. R. Civ. P. 9(b). Because Plaintiffs’ claim for
unjust enrichment fails, the district court also properly dismissed their requests for
declaratory relief, reformation, and quiet title, which were predicated on the unjust
enrichment claim.
3. The district court did not abuse its discretion in denying leave to
amend. Although a district court should grant leave to amend liberally, the court
may deny leave if amendment would be futile. Gordon v. City of Oakland, 627
F.3d 1092, 1094 (9th Cir. 2012). The district court’s decision that the amendment
would be futile was not an abuse of discretion. Id.3
4. Finally, the district court did not abuse its discretion in denying
Plaintiff Pierce’s motion for reconsideration. Plaintiff Pierce did not present the
district court with any newly discovered evidence, there was no intervening change
in controlling law, and, for the reasons discussed above, the district court did not
commit clear error and its initial decision was not manifestly unjust. Sch. Dist. No.
1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
AFFIRMED.
4