Robert O'Connor v. Nationstar Mortgage, LLC

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT H. O’CONNOR, No. 14-16961
Plaintiff-Appellant, D.C. No. 3:13-cv-05874-NC
v.
MEMORANDUM*
NATIONSTAR MORTGAGE, LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Nathanael M. Cousins, Magistrate Judge, Presiding**
Submitted February 13, 2018***
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
This matter has been stayed since March 22, 2017 pending resolution of Ho
v. ReconTrust Co., N.A., No. 10-56884, or further order of the court. We hereby
lift the stay.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Robert H. O’Connor 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
Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We
affirm.
The district court properly dismissed O’Connor’s Fair Credit Reporting Act
(“FCRA”) claims because O’Connor failed to allege facts sufficient to show that
he reported a dispute of any information provided by Nationstar to a credit
reporting agency (“CRA”). See Gorman v. Wolpoff & Abramson, LLP, 584 F.3d
1147, 1154 (9th Cir. 2009) (explaining that a creditor’s duties under the FCRA are
“triggered upon notice of a dispute from a CRA” rather than “directly from the
consumer”).
The district court properly dismissed O’Connor’s Fair Debt Collection
Practices Act (“FDCPA”) claims because O’Connor failed to allege facts sufficient
to show that Nationstar engaged in debt collection activity. See Ho v. ReconTrust
Co., NA, 858 F.3d 568, 572 (9th Cir. 2017) (“[A]ctions taken to facilitate a non-
judicial foreclosure . . . are not attempts to collect a ‘debt’ as that term is defined
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by the FDCPA.”).
The district court properly dismissed O’Connor’s state law claims as barred
by the doctrine of res judicata because these claims involve the same primary right
as those O’Connor litigated in a prior state court action. See Mycogen Corp. v.
Monsanto Co., 51 P.3d 297, 306-07 (Cal. 2002) (explaining California’s primary
right theory); see also Matsushita Electric Industrial Co., Ltd. v. Epstein, 516 U.S.
367, 373 (1996) (“Federal courts may not employ their own rules in determining
the effect of state judgments, but must accept the rules chosen by the State from
which the judgment is taken.” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion in granting Nationstar’s
requests for judicial notice because the documents in question are matters of public
record. See Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th
Cir. 2012) (standard of review); Harris v. County of Orange, 682 F.3d 1126, 1132
(9th Cir. 2012) (documents filed in federal or state court and other matters of
public record are subject to judicial notice).
The district court did not abuse its discretion in denying O’Connor’s motion
to file a second amended complaint because amendment would have been futile.
See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (“A
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district court acts within its discretion to deny leave to amend when amendment
would be futile . . . .”).
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).
AFFIRMED.
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