Michael Jones v. Home Mortgage Direct Lenders , 599 F. App'x 666 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MICHAEL W. JONES and ANALISA A. No. 13-15087
JONES,
D.C. No. 3:12-cv-00289-RCJ-
Plaintiffs - Appellants, WGC
v.
MEMORANDUM*
HOME MORTGAGE DIRECT
LENDERS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted February 10, 2015
San Francisco, California
Before: PAEZ and BERZON, Circuit Judges, and EZRA, District Judge.**
Michael and Analisa Jones (“Appellants”) appeal the district court’s order
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
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dismissing their complaint for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). We have jurisdiction under 28 U.S.C. § 1291. We affirm.
Appellants first contend that the district court did not have subject matter
jurisdiction over the action. We review de novo the district court’s determination
of subject matter jurisdiction. Robinson v. United States, 586 F.3d 683, 685 (9th
Cir. 2009). The first cause of action in Appellants’ complaint asserted violations
of 15 U.S.C. § 1641(f)(2), giving the district court original subject matter
jurisdiction under 28 U.S.C. § 1331. Appellants’ third and fourth causes of action,
which asserted violations of a Nevada statute that incorporates the federal Fair
Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq., necessarily turn on the
construction of federal law and were thus also subject to the district court’s federal
question jurisdiction. See Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804,
808 (1986). The district court properly exercised supplemental jurisdiction over
the remaining causes of action, which derived from the same nucleus of operative
fact as Appellants’ federal claims. See Trs. of the Constr. Indus. & Laborers
Health & Welfare Trust v. Desert Valley Landscape & Maint., Inc., 333 F.3d 923,
925 (9th Cir. 2003).
Appellants next contend that the district court erred by improperly taking
judicial notice of evidence outside of the pleadings in granting SunTrust’s motion
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to dismiss. It is not necessary to decide whether judicial notice was proper in this
instance, because the district court could have dismissed Appellants’ complaint
without taking judicial notice of the contents of the documents submitted by
SunTrust.
Appellants’ first cause of action alleges that the mortgage “was almost
immediately transferred” in violation of 15 U.S.C. § 1641(f)(2). The notice of
default attached to the complaint states that it was sent by the duly appointed
trustee under a deed of trust executed by Appellants on March 10, 2006.1
Appellants filed suit on February 16, 2012, almost six years after the execution of
the deed of trust referenced in the notice of default and certainly more than one
year after the “almost immediate[]” transfer alleged in their complaint. Appellants’
claim is thus time-barred under 15 U.S.C. § 1640(e). The second cause of action
alleged that the notice of default failed to comply with the requirements of
section 107.080 of the Nevada Revised Statutes. The notice of default includes the
elements required by statute that Appellants allege were absent, and this cause of
action thus also fails.
1
The notice of default was attached to Appellants’ complaint, and therefore
could be properly considered by the district court on a motion to dismiss without
the benefit of judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688
(9th Cir. 2001).
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The district court did not rely on any of the noticed documents in dismissing
Appellants’ third, fourth, and fifth causes of action. Appellants’ sixth cause of
action seeks rescission of the mortgage agreements based on unilateral mistake.
“A unilateral mistake can be the basis of a rescission if the other party had reason
to know of the mistake or his fault caused the mistake.” Oh v. Wilson, 910 P.2d
276, 278 (Nev. 1996) (internal quotation marks omitted). While the district court
referred to the judicially noticed deed of trust in rejecting this claim, such a
reference was not required for dismissal. Appellants’ complaint did not allege that
SunTrust was a party to the mortgage agreements or could have otherwise known
of or caused their mistake. Their claim for unilateral mistake fails on this basis
alone.
Finally, Appellants contend that the district court erred in not allowing
Appellants an opportunity to amend their complaint. We review dismissal without
leave to amend for abuse of discretion, and denial of leave to amend is improper
unless it is clear that the complaint could not be saved by any amendment. Zucco
Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th Cir. 2009). Appellants
have not shown, and the court does not find, that any of Appellants’ six causes of
action could have been saved by amendment. The district court did not abuse its
discretion in denying leave to amend.
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AFFIRMED.
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