Eric Gilbert v. United States

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 20 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ERIC L. GILBERT; AUDRA GILBERT, No. 18-17004 husband and wife, D.C. No. 2:17-cv-03762-JJT Plaintiffs-Appellants,

v. MEMORANDUM*

UNITED STATES OF AMERICA; PHILIP K. LEOPARD, as Trustee of Namaca Management Limited,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding

Argued and Submitted February 3, 2021 Phoenix, Arizona

Before: W. FLETCHER, MILLER, and HUNSAKER, Circuit Judges.

Eric and Audra Gilbert appeal the district court’s dismissal of their complaint

against Defendants-Appellees Philip K. Leopard, as trustee of Namaca Management

Limited (Namaca), and the United States. The Gilberts bring quiet title and

interpleader claims against both defendants and breach of contract, declaratory

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. judgment,1 and wrongful recording claims against Namaca. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

We review dismissals for failure to state a claim and lack of subject matter

jurisdiction de novo. Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995). We also

review whether the United States waived its sovereign immunity de novo. Orff v.

United States, 358 F.3d 1137, 1142 (9th Cir. 2004), aff’d, 545 U.S. 596 (2005).

1. Quiet Title. Because the United States released all federal tax liens

placed on the Property, the Gilberts’ quiet title claim against both defendants is

moot; the Gilberts obtained the relief they sought and the court can no longer grant

any effectual relief in their favor.2 See Calderon v. Moore, 518 U.S. 149, 150 (1996)

(per curiam).

2. Interpleader. To the extent the Gilberts seek interpleader to resolve a

dispute over the since-released tax liens, this claim is moot. See Calderon, 158 U.S.

at 150. To the extent the Gilberts seek to resolve their withholding obligations owed

to the United States under FIRPTA and FDAP through interpleader, their claim fails

1 The Gilberts’ claim for a declaration establishing that their withholding of funds required under the Foreign Investment in Real Property Tax Act (FIRPTA) and the Fixed, Determinable, Annual, or Periodical income (FDAP) rules from their agreed purchase price for the subject real property was not a breach of contract is resolved in a contemporaneously filed opinion. Their remaining declaratory judgment claims are resolved herein. 2 We take judicial notice of the release of the federal tax liens as matters of public record, maintained by the Maricopa County Recorder. See Fed. R. Evid. 201(c)(1).

2 because the United States has not waived its sovereign immunity. The United States

waives its sovereign immunity when it “claims a mortgage or other lien” on real or

personal property. 28 U.S.C. § 2410(a)(5). The United States has not asserted a lien

based on the Gilberts’ FIRPTA or FDAP withholding obligations. Thus, the Gilberts

cannot sue the United States, and their interpleader claim fails. See Dunn & Black,

P.S. v. United States, 492 F.3d 1084, 1088 (9th Cir. 2007).

3. Breach of Contract. The Gilberts’ breach of contract claim is not ripe.

While they argue that Namaca breached the amended real estate contract by failing

to take “immediate and appropriate steps to have the title issues resolved as quickly

as possible,” any obligation created by this sentence is so vague and indefinite that

it is incapable of being performed. See C & T Land & Dev. Co. v. Bushnell, 470 P.2d

102, 103 (Ariz. 1970). But the additional phrase in the same provision that “title

issues shall be resolved prior to or at the time of final conveyance” is sufficiently

definite to enforce. Therefore, under the terms of the contract, Namaca was required

to deliver clear title to the Gilberts once they fulfilled their payment obligations. The

Gilberts, however, have not completed their payment obligations. Because a breach

of contract claim is premature until it becomes certain the contractual obligation will

not be honored, the Gilberts’ claim fails as not ripe. See Clinton v. Acequia, Inc., 94

F.3d 568, 572 (9th Cir. 1996); Esplendido Apartments v. Olsson, 697 P.2d 1105,

1111 (Ariz. Ct. App. 1984).

3 4. Declaratory Judgment. To the extent the Gilberts seek declaratory

relief related to the since-removed federal tax liens, this claim is moot. See Principal

Life Ins. Co. v. Robinson, 394 F.3d 665, 669 (9th Cir. 2005) (“The requirement that

a case or controversy exist under the Declaratory Judgment Act is identical to Article

III’s constitutional case or controversy requirement.”) (quotation marks and citation

omitted). And the remaining declarations that the Gilberts seek, which relate to their

breach of contract claim, fail because, as discussed above, they are not ripe. See id.

5. Wrongful Recording. Finally, the Gilberts’ wrongful recording claim

fails because “[o]ne must be an ‘owner’ or ‘beneficial title holder’ at the time of the

recording to assert a claim under [Ariz. Rev. Stat.] § 33–420(A).” SWC Baseline &

Crismon Inv’rs, L.L.C. v. Augusta Ranch Ltd. P’ship, 265 P.3d 1070, 1079 (Ariz.

Ct. App. 2011); see also Ariz. Rev. Stat. § 33–420(A). The recording at issue is the

Notice of Foreclosure recorded in December 2017. The Gilberts did not—and

cannot—allege that they owned the Property or held beneficial title to the Property

at the time of that recording.

AFFIRMED.