Dale Harms v. Select Portfolio Serv., Inc.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

DALE NORMAN HARMS, No. 17-15635

Plaintiff-Appellant, D.C. No. 4:16-cv-01585-CW

v.
MEMORANDUM*
SELECT PORTFOLIO SERVICING, INC.;
et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding

Submitted November 15, 2017**

Before: CANBY, TROTT, and GRABER, Circuit Judges.

Dale Norman Harms appeals pro se from the district court’s order dismissing

his action alleging Truth in Lending Act (“TILA”) and state law claims. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

dismissal for failure to state a claim under Federal Rule of Civil Procedure

*
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).
12(b)(6). Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009). We affirm.

The district court properly dismissed Harms’s TILA recission claim because

that claim was barred by the applicable statute of limitations. See 15 U.S.C.

§ 1635(f) (imposing three-year period to exercise right of rescission under TILA);

Jesinoski v. Countrywide Home Loans, Inc., 135 S.Ct. 790, 792 (2015) (a borrower

exercises his right of rescission by notifying the creditor of intent to rescind within

three years after the transaction is consummated); see also Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (to avoid dismissal, “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)).

The district court did not abuse its discretion in denying Harms’s motion for

recusal because Harms failed to establish any ground for recusal. See United

States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012) (setting forth standard of

review and grounds for disqualification).

The district court did not abuse its discretion in granting defendants’ request

for judicial notice because the documents in questions were matters of public

record. See Fed. R. Evid. 201(b)(2); Lee v. City of Los Angeles, 250 F.3d 668, 689

(9th Cir. 2001) (standard of review). The district court did not abuse its discretion

in denying Harms’s request for judicial notice because the district court stated it

would consider the case law and authorities submitted by Harms in rendering a

2 17-15635
decision.

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.

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