Bayardo Sandy v. Bank of America Corp. ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BAYARDO RENO SANDY, No. 15-15090
Plaintiff-Appellant, D.C. No. 2:14-cv-01100-JCM-
CWH
v.
BANK OF AMERICA CORPORATION; MEMORANDUM *
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Bayardo Reno Sandy appeals pro se from the district court’s judgment
dismissing his action alleging federal and state law claims arising out of pre-
foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo the district court’s dismissal under Federal Rule of Civil Procedure
*
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).
12(b)(6), Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010), and we affirm.
The district court properly dismissed Sandy’s quiet title claim because
Sandy failed to allege facts sufficient to state a plausible claim for relief. See id. at
341-42 (although pro se pleadings are liberally construed, a plaintiff must still
present factual allegations sufficient to state a plausible claim for relief); Breliant
v. Preferred Equities Corp., 918 P.2d 314, 318 (Nev. 1996) (per curiam) (“In a
quiet title action, the burden of proof rests with the plaintiff to prove good title in
himself.”). The district court properly determined that “harassment” and
“bankruptcy fraud” were not cognizable civil causes of action. We reject as
unsupported by the record Sandy’s contention that the district court failed to
address his Home Affordable Modification Program and conspiracy claims against
all relevant defendants.
Contrary to Sandy’s contention, the district court properly dismissed his
claims against several non-appearing defendants because Sandy had notice of the
potential dismissal of his complaint and filed an opposition to dismissal, and Sandy
could not possibly obtain relief. See Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir.
1981) (explaining that as long as plaintiff receives notice and an opportunity to
oppose dismissal, “[a] trial court may act on its own initiative to note the
inadequacy of a complaint and dismiss it for failure to state a claim”); see also
Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988) (“[T]he
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plaintiffs could not possibly win relief and [therefore] the dismissal was
appropriate even though it was on the court’s own motion.”). We reject as
unsupported by the record Sandy’s contention that the judge exhibited bias against
him.
The district court did not abuse its discretion in denying Sandy’s requests for
default judgment because several defendants appeared and filed a successful
motion to dismiss, which established the insufficiency of Sandy’s complaint. See
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (setting forth factors for
determining whether to enter default judgment).
The district court properly granted defendants’ request for judicial notice of
publicly recorded documents. See Federal Rule of Evidence 201(b)(2); ); see also
Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th Cir. 2012)
(setting forth standard of review).
We do not consider matters not specifically and distinctly raised and argued
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).
Sandy’s motion to quash the answering brief and certificate of service, filed
on December 28, 2015, is denied.
AFFIRMED.
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