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 2021-03

Lebohang Morake v. Nandi Morake ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                       MAR 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEBOHANG MORAKE,                                No.    20-55055
Plaintiff-Appellant,            D.C. No. 2:19-cv-07374-MWF-
PLA
v.
NANDI MORAKE,                                   MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted March 16, 2021**
Before:      GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Lebohang Morake appeals from the district court’s judgment dismissing his
diversity action alleging state law claims. We have jurisdiction under
    28 U.S.C. § 1291
    . We review de novo a dismissal on the basis of claim preclusion. Stewart
v. U.S. Bancorp,
    297 F.3d 953
    , 956 (9th Cir. 2002). We affirm.
*
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).
The district court properly dismissed appellant’s action on the basis of claim
preclusion because the claims involved the same primary right raised in a prior
state court action that resulted in a final judgment on the merits. See San Diego
Police Officers’ Ass’n v. San Diego City Emps.’ Ret. Sys.,
    568 F.3d 725
    , 734 (9th
Cir. 2009) (federal court must follow state’s preclusion rules to determine effect of
a state court judgment; discussing elements of claim preclusion under California
law); Boeken v. Philip Morris USA, Inc.,
    230 P.3d 342
    , 348 (Cal. 2010) (under the
primary rights theory, “a judgment for the defendant is a bar to a subsequent action
by the plaintiff based on the same injury to the same right, even though he presents
a different legal ground for relief” (citation and internal quotation marks omitted)).
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).
Appellee’s request for an award of costs on appeal, set forth in the
answering brief, is denied without prejudice to re-filing in compliance with Federal
Rule of Appellate Procedure 39 and Ninth Circuit Rule 39-1.
AFFIRMED.
2                                       20-55055