NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
USOALII NIKOTEMO MILLER, No. 13-17116
Plaintiff-Appellant, D.C. No. 3:12-cv-02282-EMC
v.
MEMORANDUM*
CARRINGTON MORTGAGE SERVICES,
INC; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Usoalii Nikotemo Miller appeals pro se from the district court’s judgment
dismissing Miller’s action alleging federal and state law claims related to the
foreclosure of real property. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo a district court’s dismissal for failure to state a claim 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 Miller’s action because Miller failed to
allege facts sufficient to state plausible claims for wrongful foreclosure or quiet
title. See id. at 341-42 (although pro se pleadings are liberally construed, a
plaintiff must still present factual allegations sufficient to state a plausible claim
for relief); see also Miles v. Deutsche Bank Nat’l Trust Co., 186 Cal. Rptr. 3d. 625,
636 (Ct. App. 2015) (setting forth the elements of a wrongful foreclosure claim);
Lueras v. BAC Home Loans Servicing, LP, 163 Cal. Rptr. 3d. 804, 835 (Ct. App.
2013) (stating that a borrower cannot quiet title without first discharging the
outstanding debt secured by a deed of trust).
The district court did not abuse its discretion by denying Miller leave to file
a fifth amended complaint because amendment would have been futile. See
Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth
standard of review and explaining that a district court may deny leave to amend
where amendment would be futile); see also Chodos v. West Publ’g Co., Inc., 292
F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has already granted a
2 13-17116
plaintiff leave to amend, its discretion in deciding subsequent motions to amend is
particularly broad” (citation and internal quotation marks omitted)).
We do not consider arguments raised for the first time on appeal or 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); see also Greenwood v. FAA, 28
F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an
appellant, and a bare assertion does not preserve a claim . . . .”).
We reject as without merit Miller’s contentions that the district court
demonstrated bias and violated due process.
Miller’s “motion to reject notice of appearance of counsel or re-assignment
of counsel within the same office and to require strict compliance with FRAP Rule
26.1 regarding corporate disclosure statement,” filed on April 14, 2014, is denied.
AFFIRMED.
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