Bwd Properties 2, LLC v. Bobby Franklin

FILED
NOT FOR PUBLICATION DEC 16 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BWD PROPERTIES 2, LLC; et al., No. 08-17643
Plaintiffs-counter-defendants - D.C. No. 2:06-cv-01499-BES-PAL
Appellees,
v. MEMORANDUM *
BOBBY LEN FRANKLIN, DBA
Daydream Land & Systems Development
Company; et al.,
Defendants-counter-claimants
- Appellants,
v.
SHIRLEY ECKLES, Special
Administratrix of the Estate of Bobby
Dean Franklin; et al.,
Third-party-defendant -
Appellees.
Appeal from the United States District Court
for the District of Nevada
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NW /Research
Brian E. Sandoval, District Judge, Presiding
Submitted November 17, 2009 **
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Bobby Len Franklin and Robert Lee Franklin appeal pro se from the district
court’s judgment dismissing their third-party complaint against the United States,
granting summary judgment in favor of BWD Properties 2, 3, and 4 (“BWD”), and
permanently enjoining the Franklins from clouding title to certain lands in Nevada.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court properly dismissed the third-party claims against the
United States because the Franklins failed to exhaust the required administrative
procedures and the district court therefore lacked subject matter jurisdiction. See
Doria Mining and Eng’g Corp. v. Morton, 608 F.2d 1255, 1257 (9th Cir. 1979)
(“When the regulations governing an administrative decision-making body require
that a party exhaust its administrative remedies prior to seeking judicial review, the
party must do so before the administrative decision may be considered final and
the district court may properly assume jurisdiction.”); United States v. Alisal Water
Corp., 431 F.3d 643, 650 (9th Cir. 2005) (stating de novo standard of review). We
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
NW /Research 2 08-17643
previously rejected the Franklins’ contentions regarding the Confirmation Statute,
43 U.S.C. § 1165, and Stockley v. United States, 260 U.S. 532 (1923), and they
remain unavailing. See Franklin v. United States, 46 F.3d 1140 (9th Cir. Jan. 10,
1995) (unpublished mem.); Franklin v. United States, 46 F.3d 1141 (9th Cir. Jan.
10, 1995) (unpublished mem.).
The district court did not abuse its discretion by denying the Franklins’
motion to reconsider. See Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS,
Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (stating standard of review and grounds
for relief). To the extent the Franklins sought to bring a claim under the Quiet
Title Act, it was time-barred because they knew of the interest of the United States
in 1993 or earlier, but commenced the action more than twelve years later. See 28
U.S.C. § 2409a(g) (“Any civil action under this section . . . shall be barred unless it
is commenced within twelve years of the date upon which it accrued. Such action
shall be deemed to have accrued on the date the plaintiff . . . knew or should have
known of the claim of the United States.”).
The district court properly granted summary judgment on the claims made
by BWD because BWD offered undisputed evidence that they owned the
properties over which they sought to quiet title, and the Franklins failed to raise a
triable issue of their own cognizable interest in these properties. See Breliant v.
NW /Research 3 08-17643
Preferred Equities Corp., 918 P.2d 314, 318 (Nev. 1996) (per curiam) (stating
burden of proof under Nevada law); Alisal Water, 431 F.3d at 651 (stating de novo
standard of review for summary judgment).
The district court correctly determined that the various documents recorded
by the Franklins were a cloud on the title of BWD’s property and ordered the
documents expunged, and did not abuse its discretion when it granted a permanent
injunction against the Franklins. See N. Cheyenne Tribe v. Norton, 503 F.3d 836,
843 (9th Cir. 2007) (stating standard of review and listing factors to be considered
for injunctive relief).
The Franklins’ remaining contentions, including those regarding the denial
of their motion to present supposedly new evidence, their proposed joint pre-trial
order, and the substitution of Shirley Eckles, are unpersuasive.
AFFIRMED.
NW /Research 4 08-17643