Charles Barker, III v. J.P. Morgan Chase Bank, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 16, 2018
• Docket: 16-35615
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 16 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHARLES MORSE BARKER III, No. 16-35615

Plaintiff-Appellant, D.C. No. 3:11-cv-00579-MO

v. MEMORANDUM* JPMORGAN CHASE BANK, N.A.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, Chief Judge, Presiding

Submitted August 14, 2018**

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.

Charles Morse Barker III appeals pro se from the district court’s dismissal,

on remand from this court, of his suit alleging various mortgage- and foreclosure-

related claims under Oregon and federal law. We have jurisdiction under 28

U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under

* 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). Federal Rule of Civil Procedure 12(b)(6). Eclectic Props. East, LLC v. Marcus &

Millichap Co., 751 F.3d 990, 995 (9th Cir. 2014). We affirm.

We conclude that, at most, Barker has established standing to pursue his

quiet title and fraud claims. See Wittman v. Personhuballah, 136 S. Ct. 1732, 1736

(2016) (stating that standing requirements persist through the life of a lawsuit);

Friends of Santa Clara River v. U.S. Army Corps of Eng’rs, 887 F.3d 906, 918 (9th

Cir. 2018) (setting forth standard for establishing constitutional standing).

Additionally, to the extent Barker challenges on appeal the district court’s

dismissal of his claims, the district court properly concluded that Barker had failed

to state a claim. The district court properly dismissed Barker’s fraud cause of

action as Barker failed to satisfy the heightened pleading standard set forth in

Federal Rule of Civil Procedure 9(b). See Kearns v. Ford Motor Co., 567 F.3d

1120, 1124-25 (9th Cir. 2009) (holding that circumstances constituting fraud must

be stated with particularity). Barker failed to state a claim under the Fair Debt

Collection Practices Act because he failed to allege facts sufficient to show that

any defendant was a “debt collector” under the Act. See 15 U.S.C. § 1692a(6)

(defining “debt collector”); Ho v. ReconTrust Co., 858 F.3d 568, 572 (9th Cir.),

cert. denied, 138 S. Ct. 504 (2017). The district court properly dismissed Barker’s

conversion, wrongful foreclosure/quiet title, unjust enrichment, “unfair practices –

gross financial inequity,” Oregon Trust Deed Act, “contract of adhesion,” and

2 MERS-related claims because Barker either failed to allege a cognizable legal

theory or failed to allege facts sufficient to state a claim. See Kwan v. SanMedica

Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017) (stating that a dismissal under Rule

12(b)(6) may be based on a lack of a cognizable legal theory or the absence of

sufficient facts alleged under a cognizable theory). Contrary to Barker’s

arguments, the district court followed this court’s mandate in Barker’s prior appeal

regarding “allegations of general unfairness” by explicitly addressing each claim

asserted by Barker in his third amended complaint. See Barker v. GMAC

Mortgage LLC, 612 F. App’x 452 (9th Cir. 2015).

The district judge did not plainly err by failing sua sponte to disqualify

himself. See 28 U.S.C. § 455; United States v. Holland, 519 F.3d 909, 911-12 (9th

Cir. 2008). Barker’s arguments, primarily addressing the merits of the district

court’s rulings, do not establish a basis for recusal. See Blixseth v. Yellowstone

Mountain Club, LLC, 742 F.3d 1215, 1220 (9th Cir. 2014) (per curiam).

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).

Appellees’ motions for judicial notice (Docket Entry Nos. 34 and 35) are

denied.

AFFIRMED.