Christopher Martinez v. Usaa Federal Savings Bank

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER S. MARTINEZ, No. 14-16349
Plaintiff-Appellant, D.C. No. 2:14-cv-00567-RCJ-PAL
v.
MEMORANDUM*
USAA FEDERAL SAVINGS BANK; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Christopher S. Martinez appeals pro se from the district court’s judgment
dismissing his action alleging federal and state law claims arising from foreclosure
proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
district court’s dismissal for failure to state a claim 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), and may affirm on any ground supported by the record.
Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
The district court properly dismissed Martinez’s state law and declaratory
judgment causes of action because Martinez failed to allege facts sufficient to state
any plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see
also Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d
1221, 1225 (9th Cir. 1989) (holding that the Declaratory Judgment Act, 28 U.S.C.
§ 2201, “only creates a remedy and is not an independent basis for jurisdiction”);
Chapman v. Deutsche Bank Nat’l Trust Co., 302 P.3d 1103, 1106 (Nev. 2013)
(describing requirements of quiet title action under Nevada law); Edelstein v. Bank
of N.Y. Mellon, 286 P.3d 249, 257-60 (Nev. 2012) (en banc) (recognizing, in a
materially similar situation, the authority of Mortgage Electronic Registration
System, Inc. to assign both the note and deed of trust on behalf of the original
lender and the lender’s successors and assigns); J.A. Jones Const. Co. v. Lehrer
McGovern Bovis, Inc., 89 P.3d 1009, 1018 (Nev. 2004) (setting forth elements of
fraudulent inducement cause of action under Nevada law); Dillard Dep’t Stores,
Inc. v. Beckwith, 989 P.2d 882, 886 (Nev. 1999) (setting forth elements of
intentional infliction of emotional distress cause of action under Nevada law); Dow
Chem. Co. v. Mahlum, 970 P.2d 98, 110 (Nev. 1998), overruled in part on other
grounds by GES, Inc. v. Corbitt, 21 P.3d 11 (Nev. 2001) (setting forth elements of
2 14-16349
fraudulent concealment cause of action under Nevada law); Higgins v. Higgins,
744 P.2d 530, 531 (Nev. 1987) (setting forth elements of slander of title cause of
action under Nevada law).
Dismissal of the Truth in Lending Act and Home Ownership and Equity
Protection Act claims was proper because Martinez failed to allege facts sufficient
to show that he is a “consumer” to whom any defendant offered credit. See 15
U.S.C. § 1602(i) (defining “consumer” as “the party to whom credit is offered or
extended”).
The district court did not abuse its discretion by denying Martinez’s Federal
Rule of Civil Procedure 59(e) motion to alter or amend the judgment because
Martinez did not establish any basis for relief. See Sch. Dist. No. 1J, Multnomah
Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth
standard of review and grounds for relief under Rule 59(e)).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Martinez’s motion to dismiss the claims for monetary damages against
GMAC (Docket Entry No. 35) is denied.
AFFIRMED.
3 14-16349