The Bank of New York Mellon v. Eugenia Celestin

NOT FOR PUBLICATION FILED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
THE BANK OF NEW YORK MELLON, No. 16-56179
formerly known as The Bank of New York,
as Trustee for the Certificate Holders D.C. No. 5:15-cv-02564-PA-KK
CWALT, Inc. Alternative Loan Trust 2007-
HY6 Mortgage Pass-Through Certificates,
Series 2007-HY6; SELECT PORTFOLIO MEMORANDUM*
SERVICING, INC.,
Plaintiffs-Appellees,
v.
EUGENIA MANCERA CELESTIN, an
individual; et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
*
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).
Eugenia Mancera Celestin and Sedrick Celestin appeal pro se from the
district court’s entry of default judgment against them in this diversity action
alleging state law claims. We have jurisdiction under 28 U.S.C. § 1291. We
review for clear error a district court’s factual findings and for an abuse of
discretion the grant of a default judgment. NewGen, LLC v. Safe Cig, LLC, 840
F.3d 606, 616 (9th Cir. 2016). We affirm.
The district court did not abuse its discretion by granting plaintiffs’ motions
for default judgment because the sufficiency of the complaint, the merits of
plaintiffs’ substantive claims, the unlikely possibility of a dispute concerning
material facts, and fact that the default was not due to excusable neglect
outweighed the other factors courts consider in determining whether to enter
default judgment. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986)
(setting forth factors to consider in determining whether to enter default judgment).
The district court did not abuse its discretion by denying the Celestins’
motions to set aside the Clerk’s entry of default because the Celestins failed to
serve a timely responsive pleading or motion under Federal Rule of Civil
Procedure 12(b) after being served with plaintiffs’ complaint. See Franchise
Holding II, LLC. v. Huntington Restaurants Grp., Inc., 375 F.3d 922, 925-26 (9th
Cir. 2004) (setting forth standard of review and factors to consider in determining
whether to set aside the entry of default).
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We lack jurisdiction over the judgment as to Anthony Acevedo because
Acevedo did not sign the notice of appeal. See Fed. R. App. P. 3(c)(2)
(requirements for a notice of appeal); Fed. R. App. P. 4(a) (the notice of appeal
required by Rule 3 must be filed in the district court); United States v. Sadler, 480
F.3d 932, 937 (9th Cir. 2007) (Rule 4(a) is both mandatory and jurisdictional);
C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (a
nonattorney does not have authority to appear as an attorney for others).
We reject as unsupported by the record the Celestins’ contentions regarding
misconduct by the district judge and plaintiffs’ counsel.
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).
All pending requests are denied.
AFFIRMED.
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