Benjamin Allen v. Wilmington Trust, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2018
• Docket: 18-15030
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BENJAMIN ALLEN; RACHEL FLOWER, No. 18-15030

Plaintiffs-Appellants, D.C. No. 3:17-cv-00154-LRH- WGC v.

WILMINGTON TRUST, N.A., As Trustee MEMORANDUM* on behalf of ARLP Securitization Trust, Series 2014-2; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Submitted August 15, 2018**

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

Benjamin Allen and Rachel Flower appeal from the district court’s order

dismissing their action alleging federal and state law claims arising from

foreclosure proceedings. 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. San Remo Hotel L.P. v. San Francisco City & County, 364 F.3d

1088, 1094 (9th Cir. 2004) (dismissal on the basis of issue preclusion); Lee v. City

of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001) (dismissal under Fed. R. Civ. P.

12(b)(6)). We affirm.

The district court properly dismissed plaintiffs’ action as barred by the

doctrine of issue preclusion because all the requirements for the application of the

doctrine were met. See Ross v. Alaska, 189 F.3d 1107, 1110 (9th Cir. 1999)

(federal courts apply state law to determine issue preclusion); Five Star Capital

Corp. v. Ruby, 194 P.3d 709, 713 (Nev. 2008) (elements of issue preclusion under

Nevada law). Contrary to plaintiffs’ contention, the issues raised in their prior

state court proceedings and this action are identical, and were necessarily and

actually litigated because the state court addressed both defendants’ authority to

foreclose and plaintiffs’ standing to challenge that authority. See Wood v.

Germann, 331 P.3d 859, 860 n.3 (Nev. 2014) (per curiam) (explaining that certain

challenges to the veracity of a lender’s loan documents fall within the scope of

Nevada’s foreclosure mediation program’s judicial review process since those

challenges implicate the lender’s authority to foreclose).

The district court did not abuse its discretion by taking judicial notice of

certain public records without a formal hearing because plaintiffs had an

opportunity to be heard on the issue of judicial notice by filing objections to the

2 18-15030 request for judicial notice and an opposition to defendants’ motion to dismiss. See

Fed. R. Evid. 201(e); Lee, 250 F.3d at 689-90 (setting forth standard review, and

explaining the circumstances in which the district court may take judicial notice of

matters of public record in ruling on a motion to dismiss for failure to state a

claim).

AFFIRMED.

3 18-15030