Timothy Dietz v. Quality Loan Service Corp of W ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY DIETZ, No. 14-35982
Plaintiff-Appellant, D.C. No. 3:13-cv-05948-RJB
v.
MEMORANDUM*
QUALITY LOAN SERVICE
CORPORATION OF WASHINGTON; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Timothy Dietz appeals pro se from the district court’s judgment dismissing
his action alleging Fair Debt Collection Practices Act (“FDCPA”) and state law
claims arising out of foreclosure proceedings. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We affirm.
We do not consider Dietz’s substantive claims because Dietz failed to
challenge the district court’s judgment on those claims in his opening brief. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (we do not consider
matters not specifically and distinctly raised and argued in the opening brief).
The district court did not abuse its discretion in considering attachments to
the complaint and matters of public record in ruling on Wells Fargo Bank, N.A.,
and Mortgage Electronic Registration Systems, Inc.’s motion to dismiss. See Lee
v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (setting forth standard
review and explaining the circumstances in which the district court may consider
documents extraneous to the pleadings in ruling on a motion to dismiss for failure
to state a claim).
The district court did not abuse its discretion in considering the declaration
filed in support of Quality Loan Service Corporation of Washington and McCarthy
& Holthus, LLP’s motion for summary judgment because the declaration was
made with personal knowledge, and the substance of the declaration could be
admitted at trial under the business-records exception to hearsay. See Fed. R. Civ.
P. 56(c)(4) (requiring that a declaration be made on personal knowledge); Fed. R.
Evid. 803(6); SEC v. Phan, 500 F.3d 895, 912 (9th Cir. 2007) (setting forth
standard of review and explaining that the district court’s refusal to exclude
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evidence in its consideration of summary judgment warrants reversal only when
the “evidentiary ruling was manifestly erroneous and prejudicial” (citation
omitted)).
AFFIRMED.
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