Horner v. Mortgage Electronic Registration Systems, Inc. ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CYNTHIA HORNER, No. 12-16398
Plaintiff-Appellant, D.C. No. 2:12-cv-00269-JCM-
GWF
v.
MORTGAGE ELECTRONIC MEMORANDUM*
REGISTRATION SYSTEMS, INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Cynthia Horner appeals pro se from the district court’s judgment dismissing
her diversity action alleging deceptive trade practices arising out of foreclosure-
related proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a dismissal under Federal Rules of Civil Procedure 9(b) and 12(b)(6). Vess v.
*
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).
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). We affirm.
The district court properly dismissed Horner’s Nevada Deceptive Trade
Practices Act (“DTPA”) claim because Horner did not allege facts sufficient to
show that defendants’ allegedly deceptive practices related to goods or services.
See Dowers v. Nationstar Mortg., LLC, 852 F.3d 964, 972 (9th Cir. 2017) (noting
that “a real estate loan is neither a good nor a service within the meaning of [the
DTPA]” and predicting that the Nevada Supreme Court will hold that the DTPA
does not regulate real estate loans); Orkin v. Taylor, 487 F.3d 734, 741 (9th Cir.
2007) (if the state’s highest court has not addressed an issue, federal courts must
predict how the state’s highest court would decide); see also Nev. Rev. Stat.
§§ 598.0915(1)-(16) (defining deceptive trade practices). Moreover, the district
court properly concluded that Horner failed to plead fraud with particularity as
required by Federal Rule of Civil Procedure 9(b). See Kearns v. Ford Motor Co.,
567 F.3d 1120, 1124-25 (9th Cir. 2009) (discussing Rule 9(b)’s pleading
requirement).
The district court did not abuse its discretion in declining to grant Horner
leave to amend the DTPA claim because amendment would be futile. See Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (setting forth standard of review and
explaining that leave to amend can be denied if amendment would be futile).
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We reject as without merit Horner’s contention that the district court abused
its discretion by deciding defendants’ motion to dismiss on the briefs and not
providing Horner an opportunity to conduct discovery. See Fed. R. Civ. P. 78(b)
(“By rule or order, the court may provide for submitting and determining motions
on briefs, without oral hearings.”); Rutman Wine Co. v. E. & J. Gallo Winery, 829
F.2d 729, 738 (9th Cir. 1987) (rejecting argument that plaintiff was entitled to
discovery prior to court ruling on motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6)).
We do not consider matters not specifically and distinctly raised and argied
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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