NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO ALERS, Sr., No. 14-55774
Plaintiff-Appellant, D.C. No. 2:14-cv-00611-GW-JCG
v.
MEMORANDUM*
BANK OF AMERICA, N.A.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Alejandro Alers, Sr. appeals pro se from the district court’s judgment
dismissing his action alleging violations of the Racketeering Influenced and
Corrupt Organizations Act (“RICO”) arising from a withdrawal from Alers’ bank
account with Bank of America, N.A. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review de novo the district court’s dismissal under Federal Rule of
Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We
affirm.
The district court properly dismissed Alers’ RICO claims against Bank of
America, N.A. as precluded by California’s doctrine of res judicata because the
parties previously litigated the claims to final judgment in California state
court. See Adam Bros. Farming, Inc. v. County of Santa Barbara, 604 F.3d 1142,
1148-49 (9th Cir. 2010) (describing California’s res judicata requirements).
The district court properly determined that defendant’s attorneys are
immune from liability under the Noerr-Pennington doctrine because Alers’ factual
allegations in his complaint failed to establish that the sham exception is
applicable. See Sosa v. DIRECTV, Inc., 437 F.3d 923, 929-30, 938 (9th Cir.
2006) (explaining the Noerr-Pennington doctrine and the circumstances where the
sham exception is applicable).
The district court did not abuse its discretion by denying Alers’ motions for
entry of default judgment. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.
1986) (setting forth the standard of review and factors for determining whether to
enter default judgment).
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We do not consider arguments that were not presented to the district court.
See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Alers’ request for judicial notice, filed on October 20, 2014, is granted.
AFFIRMED.
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