Timothy Algaier v. Bank of America, N.A.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY ALGAIER; DEBRA EDDY, No. 15-35895
Plaintiffs-Appellants, D.C. No. 2:13-cv-00380-TOR
v.
MEMORANDUM*
BANK OF AMERICA, N.A., a national
bank doing business in Washington state;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., a
corporation doing business in Washington
state,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief Judge, Presiding
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
Timothy Algaier and Debra Eddy appeal pro se from the district court’s
*
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).
summary judgment in their diversity action alleging state law claims related to an
alleged loan modification. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Vasquez v. County of Los Angeles, 349 F.3d 634, 639 (9th Cir.
2004). We affirm.
The district court properly granted summary judgment on plaintiffs’ breach
of contract claim because plaintiffs failed to raise a genuine dispute of material fact
as to whether a contract was formed regarding credits or whether Bank of America
breached the loan agreement. See Lehrer v. State, Dep’t of Soc. & Health Servs., 5
P.3d 722, 727 (Wash. Ct. App. 2000) (setting forth elements of breach of contract
claim under Washington law).
The district court properly granted summary judgment on plaintiffs’
promissory estoppel claim because plaintiffs failed to raise a genuine dispute of
material fact as to whether the alleged oral promise satisfied the statute of frauds.
See Greaves v. Med. Imaging Sys., Inc., 879 P.2d 276, 283 (Wash. 1994)
(concluding that oral contract was unenforceable under theory of promissory
estoppel because it failed to satisfy the statute of frauds’ writing requirement).
The district court properly granted summary judgment on plaintiffs’ fraud
claim because plaintiffs failed to raise a genuine dispute of material fact as to
whether plaintiffs reasonably relied on a misrepresentation by Bank of America.
See Elcon Const., Inc. v. E. Wash. Univ., 273 P.3d 965, 970 (Wash. 2012) (setting
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forth elements of fraud claim under Washington law).
The district court did not abuse its discretion in denying plaintiffs’ motion to
strike defendants’ declarations because the declarations were made with personal
knowledge. See Fed. R. Civ. P. 56(c)(4) (requiring that a declaration be made on
personal knowledge); see also Hambleton Bros. Lumber Co. v. BalkinEnters., Inc.,
397 F.3d 1217, 1224 n.4 (9th Cir. 2005) (setting forth standard of review for a
motion to strike).
The district court did not abuse its discretion by granting defendants’ motion
to strike plaintiffs’ submissions because the untimely disclosures were not
substantially justified or harmless. See Fed. R. Civ. P. 37(c)(1) (providing for
exclusion of evidence if a party fails to comply with Fed. R. Civ. P. Rule 26(a)
unless the failure was substantially justified or is harmless); see also Hambleton
Bros. Lumber Co., 397 F.3d at 1224 n.4 (setting forth standard of review for a
motion to strike).
We reject as unsupported by the record plaintiffs’ contentions regarding the
district court’s evidentiary findings.
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).
AFFIRMED.
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