FILED
NOT FOR PUBLICATION JAN 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CARL L. JIMENA, No. 11-16845
Plaintiff - Appellant, D.C. No. 1:07-cv-00367-OWW-
SKO
v.
CLIVE STANDISH; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Submitted January 15, 2013 **
Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges.
Carl L. Jimena appeals pro se from the district court’s summary judgment in
his action alleging claims for fraud, violation of state commercial codes, and
intentional tort. We have jurisdiction under 28 U.S.C. § 1291. We review de
*
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).
novo, Estate of Tucker ex rel Tucker v. Interscope Records, Inc., 515 F.3d 1019,
1029 (9th Cir. 2008), and we affirm.
The district court properly granted summary judgment because Jimena failed
to present admissible evidence establishing a genuine dispute of material fact
regarding UBS AG’s liability. See id. at 1032 n.14 (nonmoving party must
establish the existence of a genuine factual dispute on the basis of admissible
evidence); Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002)
(“[u]nauthenticated documents cannot be considered in a motion for summary
judgment.”).
The district court properly dismissed Jimena’s claims against UBS FS
because Jimena failed to allege facts sufficient to support these claims. See
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (to avoid dismissal, a plaintiff must
allege more than “labels and conclusions” or “naked assertion[s]” in support of his
claims (citation and internal quotation marks omitted)).
The district court properly denied Jimena’s motion to remand because
defendants’ notice of removal was timely and the court had diversity jurisdiction.
See 28 U.S.C. § 1446(b) (30-day deadline for notice of removal); Cal. Civ. Proc.
Code § 415.40 (service “deemed complete on the 10th day after” certified
mailing); Bakersfield Hacienda, Inc. v. Superior Court In and For Kern Cnty., 18
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Cal. Rptr. 812, 815-16 (Ct. App. 1962) (requiring “general manager” for purposes
of valid service under Cal. Civ. Proc. Code § 415.10 to be person with “general
direction and control of the business of the corporation”); see also 28 U.S.C.
§ 1332 (providing for district court diversity jurisdiction over actions “between”
citizens of different states).
The district court did not abuse its discretion in denying Jimena’s requests
for default judgment against Standish, UBS FS, and UBS AG because these
defendants were not in default. Moreover, contrary to Jimena’s contention, the
record does not indicate that Standish was properly served. See Cal. Civ. Proc.
Code § 413.10(c) (listing proper methods of service under California law on a
person outside the United States).
The district court did not abuse its discretion in granting UBS AG’s motion
for relief from deemed admissions. See Fed. R. Civ. P. 36(b); Hadley v. United
States, 45 F.3d 1345, 1348 (9th Cir. 1995) (setting forth standard of review).
The district court did not abuse its discretion in denying Jimena’s motion to
disqualify the district court judge because the district court considered the grounds
for recusal and determined that Jimena failed to demonstrate that the judge’s
impartiality might be reasonably questioned or that the judge had a personal bias or
prejudice. See 28 U.S.C. § 455; Liteky v. United States, 510 U.S. 540, 555 (1994)
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(“[J]udicial rulings alone almost never constitute a valid basis for a bias or
partiality motion.”).
Because the district court properly granted summary judgment, Jimena’s
appeal of the district court’s denial of his motions for injunctive relief and
judgment on the pleadings, which were duplicative of his opposition to summary
judgment, is unpersuasive.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009)
(per curiam).
Jimena’s motion to expedite decision in this case is denied as moot.
AFFIRMED.
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