FILED
NOT FOR PUBLICATION JUL 03 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRAIG HART; CAROLE PINKNEY- No. 12-56434
HART,
D.C. No. 2:12-cv-03372-MWF-
Plaintiffs - Appellants, PLA
v.
MEMORANDUM*
BANK OF AMERICA NA, sued
erroneously as Bank of America Home
Loans; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted June 25, 2014**
Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.
Craig and Carole-Pinkney Hart appeal pro se from the district court’s order
dismissing their foreclosure action alleging a federal claim under the Fair Debt
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Collection Practices Act (“FDCPA”) and various state law claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo both a denial of a motion
to remand, Sparta Surgical Corp. v. Nat’l Ass’n of Sec. Dealers, Inc., 159 F.3d
1209, 1211 (9th Cir. 1998), and a dismissal on the basis of the doctrine of res
judicata, Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). We affirm.
The district court properly denied plaintiffs’ motion to remand because
plaintiffs’ FDCPA claim gave the court federal jurisdiction over the entire action,
including state law claims arising out of the same loan transaction and foreclosure
proceedings. See 28 U.S.C. § 1367 (allowing discretionary exercise of jurisdiction
over state law claims related to federal cause of action); Sparta Surgical Corp., 159
F.3d at 1211-13 (action is properly removed where existence of federal jurisdiction
is clear from the face of the complaint, and party may not compel remand by trying
to eliminate the federal question upon which removal was based); Swanson v. S.
Or. Credit Serv., Inc., 869 F.2d 1222, 1224 (9th Cir. 1988) (per curiam) (district
court has jurisdiction over FDCPA claim under 15 U.S.C. § 1692k(d)).
The district court properly dismissed the action as precluded by the doctrine
of res judicata because plaintiffs alleged nearly identical claims arising out of the
same loan transaction and related foreclosure proceedings against the same
defendants in two prior actions in which there were final judgments on the merits.
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See Stewart, 297 F.3d at 956-57 (setting forth elements of the doctrine of res
judicata, and noting that it bars subsequent litigation of both claims that were
raised and those that could have been raised in the prior action); Owens v. Kaiser
Found. Health Plan, 244 F.3d 708, 714 (9th Cir. 2001) (unless otherwise specified,
dismissal of an action for failure to prosecute operates as an adjudication on the
merits for purposes of applying the doctrine of res judicata).
The district court did not abuse its discretion by denying leave to amend
because amendment would have been futile. See Serra v. Lappin, 600 F.3d 1191,
1200 (9th Cir. 2010).
Because we affirm dismissal on the basis of the doctrine of res judicata, we
do not consider plaintiffs’ regarding the alleged merits of their claims.
Plaintiffs’ contentions that dismissal of the action was in violation of public
policy, that the district court improperly looked beyond the pleadings or failed to
give proper consideration to their motion to remand, and that they were improperly
denied the opportunity to conduct discovery, are unpersuasive.
Because plaintiffs did not file a reply brief, defendants’ request to file a
surreply, set forth in their answering brief, is denied as moot.
AFFIRMED.
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