Eric Drake v. the Niello Company

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 27, 2019
• Docket: 18-15763
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 27 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ERIC DRAKE, No. 18-15763

Plaintiff-Appellant, D.C. No. 2:17-cv-01036-JAM-EFB

v. MEMORANDUM* THE NIELLO COMPANY; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted August 19, 2019**

Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.

Eric Drake appeals pro se from the district court’s judgment dismissing his

action arising from the purchase of a used automobile. We have jurisdiction under

28 U.S.C. § 1291. We review de novo. Daewoo Elecs. Am. Inc. v. Opta Corp.,

875 F.3d 1241, 1246 (9th Cir. 2017) (Fed. R. Civ. P. 12(c) dismissal);

* 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). Drake’s request for oral argument, set forth in his opening brief, is denied. Manufactured Home Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1025 (9th Cir.

2005) (claim preclusion). We affirm.

The district court properly granted judgment on the pleadings on the basis of

claim preclusion because Drake’s claims were raised, or could have been raised, in

the prior federal action, which involved the same parties or their privies and

resulted in a final judgment on the merits. See Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003) (elements of

claim preclusion); see also Headwaters Inc. v. U.S. Forest Service, 399 F.3d 1047,

1052 (9th Cir. 2005) (stating that a stipulated dismissal of an action with prejudice

generally constitutes a final judgment on the merits for purposes of claim

preclusion).

The district court did not abuse its discretion by declining supplemental

jurisdiction over the one state law claim it found was not barred by claim

preclusion. See 28 U.S.C. § 1367(c)(3); Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir.

2001) (the district court in its discretion may “decline to exercise supplemental

jurisdiction over related state-law claims once it has dismissed all claims over

which it has original jurisdiction” (citation and internal quotation marks omitted)).

Drake’s contentions that Magistrate Judge Brennan and District Judge

Mendez were biased, and that the case was improperly assigned, are unpersuasive.

See United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) (“A judge is not

2 disqualified by a litigant’s suit or threatened suit against him . . . .”).

Appellees’ motion to take judicial notice (Docket Entry No. 30) is granted.

AFFIRMED.