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 2020-07

Dwayne Dennis v. Jp Morgan Chase Bank ( 2020 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        JUL 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DWAYNE J. DENNIS; HAZEL R.D.                    No.    19-35271
DENNIS,
D.C. No. 3:18-cv-00555-YY
Plaintiffs-Appellants,
v.                                             MEMORANDUM*
JP MORGAN CHASE BANK,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted July 14, 2020**
Before:      CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.
Dwayne J. Dennis and Hazel R.D. Dennis appeal pro se from the district
court’s judgment dismissing their action alleging federal and state law claims
arising out of foreclosure proceedings. We have jurisdiction under
    28 U.S.C. § 1291
    . We review de novo a district court’s dismissal under Federal Rule of Civil
*
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).
Procedure 12(b)(6). Cervantes v. Countrywide Home Loans, Inc.,
    656 F.3d 1034
    ,
1040 (9th Cir. 2011). We affirm.
The district court properly dismissed plaintiffs’ Racketeer Influenced and
Corrupt Organizations Act (“RICO”) claim because plaintiffs failed to allege facts
sufficient to show a pattern of racketeering activity required to state a claim for
violations of, or conspiracy to violate, RICO. See Sanford v. MemberWorks, Inc.,
    625 F.3d 550
    , 557, 559 (9th Cir. 2010) (listing elements of a RICO claim under
    18 U.S.C. § 1962
    (c) and explaining that to plead a RICO conspiracy claim under
§ 1962(d), the plaintiff must first adequately plead a substantive violation of
RICO); see also 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 and internal quotation marks
omitted)).
The district court properly dismissed plaintiffs’ fraud claim because
plaintiffs failed to allege facts sufficient to state a plausible claim. See Or. Pub.
Emps.’ Ret. Bd. ex rel. Or. Pub. Emps.’ Ret. Fund v. Simat, Helliesen & Eichner,
    83 P.3d 350
    , 359 (Or. Ct. App. 2004) (elements of fraud claim under Oregon law);
see also Iqbal,
    556 U.S. at 678
    .
The district court did not abuse its discretion in denying leave to amend
plaintiffs’ fraud claim because amendment would have been futile. See Cervantes,
2                                      19-35271
    656 F.3d at 1041
     (setting forth standard of review and explaining that a district
court may deny leave to amend where amendment would be futile).
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).
AFFIRMED.
3                                       19-35271