Charles Rose v. Jpmorgan Chase Bank, N.A.

FILED
NOT FOR PUBLICATION OCT 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES DONALD ROSE, No. 12-35020
Plaintiff - Appellant, D.C. No. 3:11-cv-00611-SI
v.
MEMORANDUM*
JPMORGAN CHASE BANK, N.A.
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted October 10, 2013**
Portland, Oregon
Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.
Charles Rose appeals from the district court’s grant of JPMorgan Chase
Bank’s motion to dismiss. The district court ruled that Rose’s claims were barred
by res judicata. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
-2-
Rose concedes on appeal that his adversary proceeding in bankruptcy court
“reached a final judgment on the merits, and . . . involved identical parties” as
those currently before us. Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987
(9th Cir. 2005). The parties dispute only whether the adversary proceeding
“involved the same ‘claim.’” Id. We conclude that it did.
Rose’s present claims arise out of the same transactional nucleus of facts as
those in his adversary proceeding. Id. (holding that the first res judicata criterion is
“whether the two suits arise out of the same transactional nucleus of facts”). The
factual allegations underlying his claims are based on whether and how Chase took
possession of the relevant promissory note and deed of trust. That Chase
foreclosed on the property after the adversary proceeding was initiated does not
change this fact. Moreover, this case seeks to relitigate whether Chase has the
right to foreclose on the property, an issue already resolved in the adversary
proceeding. Id. (holding that the second and third res judicata criteria are “whether
rights or interests established in the prior judgment would be destroyed or impaired
by prosecution of the second action [and] whether the two suits involve
infringement of the same right”); see also Int’l Union of Operating Eng’rs-Emp’rs
Constr. Indus. Pension, Welfare & Training Trust Funds v. Karr, 994 F.2d 1426,
-3-
1430 (9th Cir. 1993) (establishing a res judicata bar despite the presentation of
different evidence).
AFFIRMED.