Richard Lussy v. Henry Lussy ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 6 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD CHARLES LUSSY, No. 18-35937
Plaintiff-Appellant, D.C. No. 2:17-cv-00079-BMM-JCL
v.
MEMORANDUM*
HENRY PAUMIE LUSSY; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted March 3, 2020**
Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
Richard Charles Lussy appeals pro se from the district court’s judgment
dismissing his action alleging federal and state law claims arising out of the
administration of the assets of Lussy’s mother’s estate. We have jurisdiction under
28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil
*
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).
Procedure 12(b)(6). Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d
990, 995 (9th Cir. 2014). We affirm.
The district court properly dismissed Lussy’s Racketeering Influenced and
Corrupt Organizations Act (“RICO”) claim because Lussy failed to allege facts
sufficient to demonstrate any element of a RICO claim. See id. at 997 (setting
forth elements of a RICO claim).
The district court properly dismissed Lussy’s state law fraud claim because
Lussy failed to allege fraud with particularity as required under Federal Rule of
Civil Procedure 9(b). See Kearns v. Ford Motor Co., 567 F.3d 1120, 1124-25 (9th
Cir. 2009) (discussing heightened pleading standard under Rule 9(b), which
applies to state law claims alleging fraudulent conduct); see also In re Estate of
Kindsfather, 108 P.3d 487, 490 (Mont. 2005) (elements of fraud under Montana
law).
The district court properly dismissed Lussy’s claim based on the “Missing
13th Amendment.” See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010)
(although pro se pleadings are liberally construed, a plaintiff must allege facts
sufficient to state a plausible claim).
The district court did not abuse its discretion in denying Lussy leave to
amend because amendment would have been futile. See Chappel v. Lab. Corp. of
Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of review and
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explaining that a district court “acts within its discretion to deny leave to amend
when amendment would be futile”).
The district court did not abuse its discretion in denying Lussy’s motion for
default judgment against defendant Green because Lussy failed to demonstrate the
possibility of prejudice and failed to plead sufficient facts to state a claim against
Green. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (setting forth
standard of review and factors courts consider in determining whether to enter a
default judgment).
We reject as meritless Lussy’s criticisms of the magistrate judge, the district
court judge, and the courtroom deputy.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Lussy’s motion to expedite the appeal (Docket Entry No. 15) is denied as
moot.
Lussy’s motion for sanctions (Docket Entry No. 16) is denied.
AFFIRMED.
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