Bright Harry v. Kcg Americas LLC ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIGHT HARRY; RONALD STEPHEN No. 21-16258
DRAPER,
D.C. No. 4:20-cv-07352-HSG
Plaintiffs-Appellants,
v. MEMORANDUM*
KCG AMERICAS LLC; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Submitted March 16, 2022**
Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.
Bright Harry and Ronald Stephen Draper appeal pro se from the district
court’s judgment dismissing their action, declaring them vexatious litigants, and
entering a pre-filing review order against them. 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). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We
affirm.
The district court properly dismissed Harry’s claims as barred by issue
preclusion and Draper’s claims as barred by claim preclusion because the issues
raised by Harry and Draper were adjudicated in a previous litigation against the
same parties (or those in privity to the parties). See Janjua v. Neufeld, 933 F.3d
1061, 1065 (9th Cir. 2019) (setting forth the elements of issue preclusion; holding
that issue preclusion bars the relitigation of issues actually adjudicated in previous
litigation); Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir.
2001) (setting forth elements of claim preclusion).
The district court did not abuse its discretion by declaring plaintiffs
vexatious litigants and entering a pre-filing review order against them because all
of the requirements were met. See Ringgold-Lockhart v. County of Los Angeles,
761 F.3d 1057, 1062 (9th Cir. 2014) (setting forth standard of review and
requirements for pre-filing review orders).
The district court did not abuse its discretion by denying plaintiffs’ motion
to recuse District Judge Gilliam because plaintiffs failed to demonstrate that a
reasonable person would believe Judge Gilliam’s impartiality could be questioned.
See United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (setting forth
standard of review and discussing standard for recusal under 28 U.S.C. §§ 144 and
2 21-16258
455).
We reject as without merit plaintiffs’ contentions that Judge Gilliam and
Judge Tigar behaved improperly.
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).
Plaintiffs’ motion to amend their excerpts of record (Docket Entry No. 34) is
granted. All other pending requests are denied.
AFFIRMED.
3 21-16258