Frederick Silver v. Charles Scharf

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 23, 2021
• Docket: 20-17426
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FREDERICK O. SILVER, No. 20-17426

Plaintiff-Appellant, D.C. No. 3:20-cv-06160-VC

v. MEMORANDUM* CHARLES W. SCHARF; WELLS FARGO BANK, N.A.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Submitted September 14, 2021**

Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.

Frederick O. Silver appeals pro se from the district court’s judgment

dismissing his action alleging claims under the Fair Debt Collection Practices Act

and state law. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

dismissal under Federal Rule of Civil Procedure 12(b)(6) on the basis of res

* 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). judicata. Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005).

We affirm.

The district court properly dismissed Silver’s action as barred by the

doctrine of res judicata because Silver litigated the same claims in Texas state

court against the same parties or their privies which resulted in a final judgment on

the merits. See Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466 (1982)

(federal courts are required to give a state court judgment the same preclusive

effect that it would be given by the courts of the state from which it emerged);

Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996) (stating

criteria for res judicata under Texas law); Sommers v. Concepcion, 20 S.W.3d 27,

39 (Tex. App. 2000) (holding a dismissal with prejudice is considered a final ruling

on the merits for the purposes of res judicata).

We reject as meritless Silver’s contention that the district court erred in

taking judicial notice of documents.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Silver’s motions to take judicial notice of fraud upon the court (Docket

Entry Nos. 22, 24) are denied. Silver’s motion to expedite the case (Docket Entry

No. 28) is denied as moot. Silver’s request for costs as set forth in his opening

2 20-17426 brief is denied. Silver’s motion to file an amended opening brief (Docket Entry No

20) is construed as a motion to file a reply brief and is granted. The Clerk is

directed to file the reply brief at Docket Entry 19.

AFFIRMED.

3 20-17426