Ellery Pettit v. Federal National Mortgage Asso

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

ELLERY J. PETTIT, No. 14-15464

Plaintiff-Appellant, D.C. No. 2:11-cv-00149-JAD-PAL

v.
MEMORANDUM*
FEDERAL NATIONAL MORTGAGE
ASSOCIATION; et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding

Submitted February 14, 2017**

Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.

Ellery J. Pettit appeals pro se from the district court’s judgment dismissing

his action seeking a declaratory judgment. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo a dismissal for failure to state a claim under Federal

*
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).
Rule of Civil Procedure 12(b)(6). Harkonen v. U.S. Dep’t of Justice, 800 F.3d

1143, 1148 (9th Cir. 2015). We affirm.

The district court properly dismissed Pettit’s action because Pettit failed to

allege facts sufficient to state a viable cause of action. See Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (“To survive a motion to dismiss, 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)); see also Stock West,

Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th

Cir. 1989) (stating that the Declaratory Judgment Act “only creates a remedy and

is not an independent basis for jurisdiction”).

The district court did not abuse its discretion by dismissing the amended

complaint without leave to amend because further amendment would be futile. See

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)

(setting forth standard of review and explaining that dismissal without leave to

amend is proper when amendment would be futile); Chodos v. West Publ’g Co.,

292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has already granted a

plaintiff leave to amend, its discretion in deciding subsequent motions to amend is

particularly broad.” (citation and internal quotation marks omitted)).

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 Contrary to Pettit’s contention, there is no basis for overturning the district

court’s order expunging the notice of lis pendens because Pettit failed to move in

the district court for a stay of that order. See Fed. R. App. P. 8(a)(1) (“A party

must ordinarily move first in the district court for . . . a stay of the judgment or

order of a district court pending appeal . . . .”).

The district court did not err by deciding the motion to dismiss without a

hearing because the local rules permit the district court to rule on a motion without

oral argument. See D. Nev. Civ. R. 78-1 (motions may be considered and decided

without a hearing).

Because the amended complaint names Seterus, Inc. as a defendant, we

reject Pettit’s contention that defendant Seterus, Inc. is not a party to this action.

AFFIRMED.

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