Josefa Lopez v. Executive Trustee Service ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 12 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSEFA S. LOPEZ; JOSE TRINIDAD No. 11-17645
CASAS; MARIA C. CASAS; LYNDON
B. GRAVES; TYRONE EVENSON; D.C. No. 3:09-cv-00180-ECR-
MICHELLINA EVENSON; BRYAN VPC
GRAY; HELEN GRAY; PATRICK
FRANKOSKI; CHRISTOPHER
PETERNELL, MEMORANDUM*
Plaintiffs - Appellants,
v.
FEDERAL HOUSING FINANCE
AGENCY, as Conservator of Fannie Mae
and Freddie Mac,
Intervenor-Defendant -
Appellee,
EXECUTIVE TRUSTEE SERVICE, LLC;
COUNTRYWIDE HOME LOANS, INC.;
GMAC MORTGAGE, LLC; NATIONAL
CITY MORTGAGE; NATIONAL CITY
CORPORATION; PNC FINANCIAL
SERVICES, INC.; AIG UNITED
GUARANTY CORPORATION; WELLS
FARGO BANK, NA; BANK OF
AMERICA, NA; RECONSTRUCT;
*
36 This disposition is not appropriate for publication and is not precedent
37 except as provided by 9th Cir. R. 36-3.
SAXON MORTGAGE SERVICES INC.;
GALE GROUP; SECURITY UNION
TITLE INSURANCE COMPANY;
NATIONAL DEFAULT SERVICING
CORPORATION; NATIONAL CITY
BANK; WELLS FARGO HOME
EQUITY; WELLS FARGO HOME
MORTGAGE, INC.; CHEVY CHASE
BANK FSB; HOMECOMINGS
FINANCIAL, LLC,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Submitted November 8, 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 Second Amended Complaint (“SAC”)
under Federal Rules of Civil Procedure 9(b) and 12(b)(6). We affirm.
Plaintiffs challenge the order of the Judicial Panel on Multidistrict Litigation
(“JPML”) transferring this case to the U.S. District Court for the District of
Arizona (“MDL Court”) and the MDL Court’s order interpreting the JPML’s order.
**
26 The panel unanimously concludes this case is suitable for decision
27 without oral argument. See Fed. R. App. P. 34(a)(2).
2
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 In re Wilson, 451 F.3d 161, 168 (3d
Cir. 2006). 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).
The district court properly dismissed Plaintiffs’ fraud in the inducement
claims for failure to plead fraud with particularity. See Fed. R. Civ. P. 9(b). In
order to successfully plead claims grounded in fraud, a complaint must “state the
time, place, and specific content of the false representations as well as the identities
of the parties to the misrepresentation.” Edwards v. Marin Park, Inc., 356 F.3d
1058, 1066 (9th Cir. 2004) (quoting Alan Neuman Prods, Inc. v. Albright, 862 F.2d
1388, 1392–93 (9th Cir. 1988)). Plaintiffs’ SAC fails to provide the necessary
allegations of “the who, what, where, when, and how” of the fraud. See Vess v.
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Cooper v.
Pickett, 137 F.3d 616, 627 (9th Cir. 1998)).
The district court properly dismissed Plaintiffs’ claim for unjust enrichment.
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
3
available when an express contract is procured by fraud, Plaintiffs did not plead
fraud with particularity.
Because Plaintiffs’ claims for fraud in the inducement and unjust enrichment
both fail, the district court also properly dismissed their requests for injunctive and
declaratory relief.
Although leave to amend should be granted with “extreme liberality,”
Chodos v. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (quoting Morongo
Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)), “[t]he
district court’s discretion to deny leave to amend is particularly broad where
plaintiff has previously amended the complaint.” Ascon Props, Inc. v. Mobil Oil
Co., 866 F.2d 1149, 1160 (9th Cir. 1989). Plaintiffs already amended their
complaint once as of right and once with the leave of the district court. Contrary to
the assertions in their opening brief, Plaintiffs made no motion for leave to amend
their SAC. The district court did not abuse its discretion, either in failing to make
Plaintiffs an unsolicited offer to amend their SAC or in dismissing the complaint
with prejudice.
AFFIRMED.
4