Geraldine Trice v. Jp Morgan Chase Bank, N.A. , 672 F. App'x 679 ( 2016 )

FILED
NOT FOR PUBLICATION DEC 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALDINE TRICE, No. 16-15663
Plaintiff-Appellant, D.C. No. 2:15-cv-01614-APG-
NJK
v.
JP MORGAN CHASE BANK, N.A.; et MEMORANDUM*
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Geraldine Trice appeals pro se from the district court’s judgment dismissing
her action alleging federal and state law claims arising from foreclosure
proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
*
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).
district court’s dismissal for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6), and we may affirm on any ground supported by the record.
Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
The district court properly dismissed Trice’s fraudulent misrepresentation
claim because Trice failed to allege facts sufficient to show that defendants Larsen,
Weber and the law firm Smith Larsen & Wixom (the “Attorney Defendants”) made
false representations to her. See Bulbman, Inc. v. Nevada Bell, 825 P.2d 588, 592
(Nev. 1992) (setting forth elements of fraudulent misrepresentation claim under
Nevada law).
The district court properly dismissed Trice’s claim for civil rights violations
under 42 U.S.C. §§ 1983, 1985 and 1986 because Trice failed to establish that any
of the appellees were acting under color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988) (elements of a claim under 42 U.S.C. § 1983); Sever v. Alaska Pulp
Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (elements of claim under 42 U.S.C.
§ 1985(3)); Trerice v. Pedersen, 769 F.2d 1398, 1403 (9th Cir. 1985) (“[A] cause
of action is not provided under 42 U.S.C. § 1986 absent a valid claim for relief
under [§] 1985.”).
The district court properly dismissed Trice’s Racketeer Influenced and
Corrupt Organizations Act (“RICO”) claim because Trice failed to allege facts
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sufficient to state a plausible claim against the Attorney Defendants. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face” (citation omitted)); Sanford v. MemberWorks, Inc., 625 F.3d 550, 557
(9th Cir. 2010) (elements of RICO claim).
The district court properly dismissed the RICO claim against defendants
JPMorgan Chase Bank, N.A. and California Reconveyance Company as barred by
the doctrine of issue preclusion because the claim was predicated on issues that
have been resolved against Trice in her prior state court actions against these
defendants. LaForge v. State, Univ. & Cmty. Coll. Sys. of Nev., 997 P.2d 130, 133
(Nev. 2000) (“The general rule of issue preclusion is that if an issue of fact or law
was actually litigated and determined by a valid and final judgment, the
determination is conclusive in a subsequent action between the parties” (citation
omitted)).
The district court did not abuse its discretion by dismissing Trice’s
complaint without leave to amend because an amendment would have been futile.
See Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir. 1988) (setting forth standard of
review and explaining that dismissal without leave to amend is not an abuse of
discretion if amendment would be futile).
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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 motions and requests are denied.
AFFIRMED.
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