FILED
NOT FOR PUBLICATION APR 29 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACQUIE CHANDLER, No. 12-15992
Plaintiff - Appellant, D.C. No. 3:10-cv-00769-LRH-
WGC,
v. District of Nevada,
Reno
NDEX WEST, LLC, ONEWEST BANK,
FSB; INDYMAC BANK FSB;
STEWART TITLE GUARANTY CO.; MEMORANDUM*
LSI TITLE AGENCY, INC.; TICOR
TITLE OF NEVADA; STANLEY SILVA,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted April 10, 2014**
San Francisco, California
Before: TALLMAN and CLIFTON, Circuit Judges, and DUFFY, District
Judge.****
* 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 Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
Appellant Jacquie Chandler (“Chandler”) appeals: (i) the district court’s
decision denying Chandler’s motion to remand the case to state court; (ii) the
district court’s decision granting Appellees’ motions to dismiss several of her state
law claims; and (iii) the district court’s decision granting summary judgment in
favor of Appellee NDeX West, LLC (“NDeX West”) on the remaining wrongful
foreclosure state law claim. This Court has jurisdiction under 28 U.S.C. § 1291,
and we affirm the district court’s judgment.
I. The District Court’s Denial of Chandler’s Motion to Remand
As a threshold matter, we have jurisdiction to consider Chandler’s appeal
from the district court’s denial of her motion to remand even though she failed to
identify that decision in the Notice of Appeal. In determining whether an appeal is
barred, this Court examines whether (i) Appellees had notice of the issue on appeal
and (ii) whether Appellees have had the opportunity to fully brief the issue. See
Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir. 2009).
Appellees had notice because Chandler discussed the motion to remand at length in
her Opening Brief and Appellees fully briefed the issue in response. Therefore,
Appellees have not been prejudiced by Chandler’s mistake and we consider her
appeal of the district court’s decision not to remand the case on the merits.
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The district court properly asserted jurisdiction and concluded that Appellees
Ticor Title of Nevada (“Ticor”) and Stanley Silva (“Silva”) were fraudulently
joined. Although an action may be removed to federal court only where there is
complete diversity of citizenship, the district court ignores the presence of
fraudulently joined defendants for the purpose of establishing diversity. Hunter v.
Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009). Joinder is fraudulent if
the plaintiff fails to state a cause of action against a resident defendant, and the
failure is obvious according to the settled rules of the state. Id. (citations and
internal quotation marks omitted). In Nevada, a complaint must set forth sufficient
facts to establish all necessary elements of a claim for relief so that the adverse
party has adequate notice of the nature of the claim and the relief sought. Hay v.
Hay, 678 P.2d 672, 674 (Nev. 1984) (internal citations omitted). Ticor and Silva
were fraudulently joined because Chandler failed to allege the necessary elements
of any of the five state law causes of action against them. As such, the district
court properly denied Chandler’s motion to remand the case to state court.
Contrary to Chandler’s assertion, the district court was not required to remand the
case to state court. See, e.g., Alliance for Prop. Rights & Fiscal Responsibility v.
City of Idaho Falls, 742 F.3d 1100, 1103 (9th Cir. 2013) (federal courts may
interpret state law when state’s highest court has not directly addressed the issue).
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II. The District Court’s Dismissal of Chandler’s Claims
This Court will not consider matters on appeal that are not specifically and
distinctly argued in an appellant’s opening brief. Christian Legal Soc’y Chapter of
Univ. of Cal. v. Wu, 626 F.3d 483, 487 (9th Cir. 2010). While Chandler included
the district court’s decision dismissing several of her claims under Federal Rule of
Civil Procedure 12(b)(6) in her Notice of Appeal, the argument portion of
Chandler’s opening brief addresses only two issues: (i) whether the district court
properly declined to remand the case to state court, and (ii) whether summary
judgment in favor of NDeX West on the wrongful foreclosure claim was proper.
The district court’s dismissal of Chandler’s other claims under Federal Rule of
Civil Procedure 12(b)(6) was not discussed in her brief. Therefore, Chandler has
waived her appeal of the district court’s decision dismissing each of her claims
with the exception of the wrongful foreclosure claim against NDeX West that
survived the motion to dismiss. See Fed. R. App. P. 28(a)(8) (“[T]he argument . . .
must contain[] appellant’s contentions and the reasons for them, with citations to
the authorities and parts of the record on which the appellant relies . . .”).
III. The District Court’s Decision on Summary Judgment
The district court properly granted summary judgment in favor of NDeX
West on Chandler’s wrongful foreclosure claim. Summary judgment is proper
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when, while viewing the evidence in the light most favorable to the nonmoving
party, “there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56; see also Cnty. of Tuolumne v.
Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001). The party moving for
summary judgment has the burden of showing the absence of a genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986). We
review a grant of summary judgment de novo. Szajer v. City of Los Angeles, 632
F.3d 607, 610 (9th Cir. 2011).
An action for wrongful foreclosure in Nevada requires a plaintiff to
“establish that at the time the power of sale was exercised or the foreclosure
occurred, no breach of condition or failure of performance existed on the
mortgagor’s or trustor’s part which would have authorized the foreclosure or
exercise of the power of sale.” Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d
610, 623 (Nev. 1983). Chandler conceded that she defaulted on her mortgage
payments before the Notice of Default was recorded. There was no evidence that
Chandler attempted to remedy the default before the power of sale was exercised.
NDeX West asserted that it was acting as a lawful agent for the beneficiary of the
Deed of Trust when the Notice of Default was recorded and NDeX West provided
evidence in support of that assertion. See Nev. Rev. Stat. § 107.080 (2010). Even
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when viewing the evidence in the light most favorable to Chandler, there was no
genuine issue of material fact sufficient to survive summary judgment. Therefore,
we affirm the district court’s decision granting summary judgment on this claim.
The judgment of the district court is AFFIRMED.
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