Yan Sui v. Richard Marshack

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YAN SUI; PEI-YU YANG, No. 15-55708
Plaintiffs-Appellants, D.C. No. 8:13-cv-01607-JAK-AJW
v.
MEMORANDUM*
RICHARD ALAN MARSHACK, an
individual; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted May 8, 2017**
Before: REINHARDT, LEAVY, and NGUYEN, Circuit Judges.
Yan Sui and Pei-Yu Yang appeal pro se from the district court’s judgment
dismissing their 42 U.S.C. § 1983 action alleging federal and state law claims in
connection with Sui’s bankruptcy proceedings. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a dismissal for lack of subject matter
*
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).
jurisdiction under Fed. R. Civ. P. 12(b)(1). Serra v. Lappin, 600 F.3d 1191, 1195
(9th Cir. 2010). We affirm.
The district court properly dismissed plaintiffs’ claims against the chapter 7
trustee because plaintiffs neither sought leave to sue the trustee from the
bankruptcy court nor alleged facts sufficient to show that the trustee acted outside
the scope of his official capacity. See Beck v. Fort James Corp. (In re Crown
Vantage, Inc.), 421 F.3d 963, 970 (9th Cir. 2005) (“[A] party must first obtain
leave of the bankruptcy court before it initiates an action in another forum against a
bankruptcy trustee or other officer appointed by the bankruptcy court for acts done
in the officer’s official capacity.”).
Because plaintiffs do not raise any arguments regarding the basis for the
district court’s dismissal of the federal claims against defendant Wells Fargo, they
have waived any challenges to the dismissal of their claims against Wells Fargo.
See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues
which are argued specifically and distinctly in the party’s opening brief.”).
The district court did not abuse its discretion by declining to exercise
supplemental jurisdiction over plaintiffs’ state law claims after dismissing all
federal claims. See 28 U.S.C. § 1367(c)(3) (permitting district court to decline
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supplemental jurisdiction if it has “dismissed all claims over which it has original
jurisdiction”); Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1107
(9th Cir. 2010) (standard of review).
The district court did not abuse its discretion by denying plaintiffs’ request
for default judgment against defendant United States Trustee because plaintiffs had
not demonstrated that they served the Trustee with the summons and complaint.
See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (setting forth standard
of review and factors for determining whether to enter default judgment).
The district court did not abuse its discretion by denying plaintiffs’ motion
for leave to amend after concluding that amendment would be futile. See Chappel
v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (“A district court acts
within its discretion to deny leave to amend when amendment would be futile
. . . .”)
We do not consider arguments raised for the first time on appeal or 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).
Appellee 2176 Pacific Homeowners Association’s request for judicial notice
(Docket Entry No. 18) is denied.
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Plaintiffs’ request for oral argument (Docket Entry No. 41) is denied.
AFFIRMED.
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