Chul Gong v. Westlend Financing, Inc. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHUL HYUN GONG, No. 20-56082
Plaintiff-Appellant, D.C. No. 2:20-cv-05026-MCS-AGR
v.
MEMORANDUM*
WESTLEND FINANCING, INC., DBA
American Capital Funding, Lenders, A
California Corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Mark C. Scarsi, District Judge, Presiding
Submitted September 14, 2021**
Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.
Chul Hyun Gong appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging federal and state law violations
stemming from a nonjudicial foreclosure. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review for an abuse of discretion a sua sponte dismissal for failure to
prosecute. Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992). We affirm.
The district court did not abuse its discretion by dismissing Gong’s action
for failure to prosecute because Gong was given leave to amend his complaint and
he failed to do so. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir.
2004) (“The failure of the plaintiff eventually to respond to the court’s ultimatum –
either by amending the complaint or by indicating to the court that it will not do so
– is properly met with the sanction of a Rule 41(b) dismissal.”); Yourish v.
California Amplifier, 191 F.3d 983, 989 (9th Cir. 1999) (listing factors to be
considered in dismissing a case as a sanction for failure to prosecute).
Contrary to Gong’s contentions, Gong was neither entitled to entry of
default against defendants who had timely filed a motion to dismiss in lieu of an
answer nor entitled to default judgment against defendants not named in the
operative complaint.
We reject as without merit Gong’s contentions that the district court and the
Clerk of Court were biased against him or engaged in unlawful or improper
conduct.
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).
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All pending motions and requests are denied.
AFFIRMED.
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