FILED
NOT FOR PUBLICATION AUG 25 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
J. LYDIA HERNANDEZ; EUTIMIO No. 14-56309
HERNANDEZ,
D.C. No. 2:14-cv-04432-R-SH
Plaintiffs-Appellants,
v. MEMORANDUM*
FEDERAL HOME LOAN MORTGAGE
CORPORATION; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted August 16, 2016**
Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.
J. Lydia and Eutimio Hernandez appeal pro se from the district court’s
judgment dismissing their action alleging federal and state law claims arising from
foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo. D-Beam Ltd. P’ship v. Roller Derby Skates, Inc., 366 F.3d 972,
974 n.2 (9th Cir. 2004) (denial of motion to remand); Stewart v. U.S. Bancorp, 297
F.3d 953, 956 (9th Cir. 2002) (dismissal on the basis of claim preclusion). We
affirm.
Denial of the motion to remand was proper because the Federal Home Loan
Mortgage Corporation (“FHLMC”) was a party and appellants brought a claim
alleging a violation of the Real Estate Settlement Practices Act. See 12 U.S.C.
§ 1452(f) (before trial, the FHLMC may remove any civil action to which it is a
party); 28 U.S.C. § 1331 (district courts have original jurisdiction of all civil
actions arising under the laws of the United States); 28 U.S.C. § 1441(a) (a
defendant may remove a civil action when district courts have original
jurisdiction); see also Van Houton v. Ralls, 411 F.2d 940, 942 (9th Cir. 1969)
(district court implicitly denied motion to remand when it granted motion to
dismiss). Appellants have waived their procedural objections to removal by failing
to raise them to the district court in a timely manner. See 28 U.S.C. § 1447(c).
The district court properly dismissed appellants’ action as barred by the
doctrine of claim preclusion because appellants raised, or could have raised, their
claims in the January 30, 2014 adversary complaint they brought against appellees
in bankruptcy court, which resulted in a final adjudication on the merits. See
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Stewart, 297 F.3d at 956 (stating the requirements for application of claim
preclusion, which bars litigation in a subsequent action of any claims that were
raised or could have been raised in a prior action); see also Fed. R. Bankr. P. 7041
(Fed. R. Civ. P. 41(b) applies in adversary proceedings); Fed. R. Civ. P. 41(b) (an
involuntary dismissal is an adjudication on the merits unless the dismissal states
otherwise).
The district court did not abuse its discretion by dismissing without leave to
amend because amendment would have been futile. See Chappel v. Lab. Corp. of
Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of review and
explaining that “[a] district court acts within its discretion to deny leave to amend
when amendment would be futile”); see also Hinton v. Pac. Enters., 5 F.3d 391,
397 (9th Cir. 1993) (a court may refuse to grant leave to amend when, even if
amendments were allowed, the complaint would be subject to dismissal).
The district court did not abuse its discretion by imposing a pre-filing
restriction against appellants after giving them notice and an opportunity to be
heard, developing an adequate record for review, making findings regarding their
frivolous litigation history, and tailoring the restriction narrowly. See Molski v.
Evergreen Dynasty Corp., 500 F.3d 1047, 1056-61 (9th Cir. 2007) (setting forth
standard of review and discussing factors to consider before imposing pre-filing
3 14-56309
restrictions).
We reject as without merit appellants’ contention that the district court
violated Local Rule 7-3 and caused them prejudice.
AFFIRMED.
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