Bright Harry v. Kcg Americas LLC

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIGHT HARRY; RONALD STEPHEN No. 21-16258 DRAPER, D.C. No. 4:20-cv-07352-HSG Plaintiffs-Appellants,

v. MEMORANDUM*

KCG AMERICAS LLC; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam, Jr., District Judge, Presiding

Submitted March 16, 2022**

Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.

Bright Harry and Ronald Stephen Draper appeal pro se from the district

court’s judgment dismissing their action, declaring them vexatious litigants, and

entering a pre-filing review order against them. We have jurisdiction under 28

U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil

* 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). Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We

affirm.

The district court properly dismissed Harry’s claims as barred by issue

preclusion and Draper’s claims as barred by claim preclusion because the issues

raised by Harry and Draper were adjudicated in a previous litigation against the

same parties (or those in privity to the parties). See Janjua v. Neufeld, 933 F.3d

1061, 1065 (9th Cir. 2019) (setting forth the elements of issue preclusion; holding

that issue preclusion bars the relitigation of issues actually adjudicated in previous

litigation); Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir.

2001) (setting forth elements of claim preclusion).

The district court did not abuse its discretion by declaring plaintiffs

vexatious litigants and entering a pre-filing review order against them because all

of the requirements were met. See Ringgold-Lockhart v. County of Los Angeles,

761 F.3d 1057, 1062 (9th Cir. 2014) (setting forth standard of review and

requirements for pre-filing review orders).

The district court did not abuse its discretion by denying plaintiffs’ motion

to recuse District Judge Gilliam because plaintiffs failed to demonstrate that a

reasonable person would believe Judge Gilliam’s impartiality could be questioned.

See United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (setting forth

standard of review and discussing standard for recusal under 28 U.S.C. §§ 144 and

2 21-16258 455).

We reject as without merit plaintiffs’ contentions that Judge Gilliam and

Judge Tigar behaved improperly.

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).

Plaintiffs’ motion to amend their excerpts of record (Docket Entry No. 34) is

granted. All other pending requests are denied.

AFFIRMED.

3 21-16258