NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL M. LUCORE, No. 22-56117
Plaintiff-Appellant, D.C. No. 3:22-cv-00220-TWR-MDD
v.
MEMORANDUM*
BANK OF AMERICA, NA; WELLS
FARGO BANK, N.A., as Trustee for the
Certificate Holders of the LMT 2006-9 Trust;
CATAMOUNT PROPERTIES 2018, LLC;
DOES, 1 through 50, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Todd W. Robinson, District Judge, Presiding
Submitted August 15, 2023**
Before: TASHIMA, S.R. THOMAS, and FORREST, Circuit Judges.
Paul M. Lucore appeals pro se from the district court’s judgment dismissing
his diversity action arising out of foreclosure proceedings. We have jurisdiction
*
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).
under 28 U.S.C. § 1291.1 We review de novo a district court’s dismissal under
Federal Rule of Civil Procedure 12(b)(6) based on claim preclusion. Holcombe v.
Hosmer, 477 F.3d 1094, 1097 (9th Cir. 2007). We affirm.
The district court properly dismissed Lucore’s action as barred by the
doctrine of claim preclusion because Lucore brought or could have brought his
claims in his prior federal court action, which involved the same parties or their
privies and resulted in a final judgment on the merits. See Owens v. Kaiser Found.
Health Plan, Inc., 244 F.3d 708, 713-14 (9th Cir. 2001) (setting forth elements of
federal claim preclusion); see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l
Planning Agency, 322 F.3d 1064, 1078 (9th Cir. 2003) (“It is immaterial whether
the claims asserted [in the subsequent action] were actually pursued in the
[previous] action . . . ; rather, the relevant inquiry is whether they could have been
brought.” (citation omitted)).
The district court did not abuse its discretion by dismissing without leave to
amend because 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 if amendment
1
Contrary to appellees’ contention, Lucore’s notice of appeal was timely filed.
See Fed. R. App. P. 26(a)(1)(C); Yepremyan v. Holder, 614 F.3d 1042, 1044 (9th
Cir. 2010) (as a judicial holiday under California state law, the day after
Thanksgiving qualifies as a legal holiday under Federal Rule of Appellate
Procedure 26(a)).
2 22-56117
would be futile).
The district court did not abuse its discretion by denying Lucore’s motion
for relief from judgment because Lucore failed to demonstrate any basis for relief.
See Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-
63 (9th Cir. 1993) (setting forth standard of review and grounds for relief under
Federal Rule of Civil Procedure 59(e) or 60(b)).
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).
AFFIRMED.
3 22-56117