Henry Malasky v. Sandra Esposito

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 23, 2019
• Docket: 19-15161
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HENRY MALASKY, No. 19-15161

Plaintiff-Appellant, D.C. No. 4:16-cv-04102-DMR

v. MEMORANDUM* SANDRA ESPOSITO; et al.,

Defendants-Appellees,

Appeal from the United States District Court for the Northern District of California Donna M. Ryu, Magistrate Judge, Presiding**

Submitted October 15, 2019***

Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

Henry Malasky appeals pro se from the district court’s judgment dismissing

his action alleging violations of the Fair Debt Collection Practices Act (“FDCPA”),

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Malasky’s request for oral argument, set forth in the opening brief, is denied. the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and other

claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6).

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011).

We affirm.

The district court properly dismissed Malasky’s FDCPA claim because

Malasky failed to allege facts sufficient to show a qualifying “debt” or that

defendants were “debt collectors” within the meaning of the FDCPA. See 15

U.S.C. § 1692a(5) (defining “debt” under the FDCPA); 15 U.S.C. § 1692a(6)

(defining “debt collector” under the FDCPA); Hebbe v. Pliler, 627 F.3d 338, 341-

42 (9th Cir. 2010) (although pro se pleadings are liberally construed, plaintiff must

allege facts sufficient to state a plausible claim).

The district court properly dismissed Malasky’s RICO and retaliation claims

because Malasky failed to allege facts sufficient to state a plausible claim. See

West v. Atkins, 487 U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff

must . . . show that the alleged deprivation was committed by a person acting under

color of state law.”); Hebbe, 627 F.3d at 341-42; Sanford v. MemberWorks, Inc.,

625 F.3d 550, 557 (9th Cir. 2010) (setting forth elements of a civil RICO claim).

The district court properly dismissed Malasky’s state law fraud claim

because Malasky failed to allege facts sufficient to satisfy the heightened pleading

2 19-15161 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) (discussing heightened

pleading standard under Rule 9(b), which applies to state law claims alleging

fraudulent conduct).

The district court properly dismissed Malasky’s declaratory relief claim

because there was no other claim upon which to request relief. See Stock W., Inc.

v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.

1989) (in order “[t]o obtain declaratory relief in federal court, there must be an

independent basis for jurisdiction”).

The district court did not abuse its discretion by taking judicial notice of

documents from Malasky’s prior Texas federal action and the California state court

action. See Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001)

(setting forth standard of review and circumstances in which the district court may

take judicial notice of matters of public record in ruling on a motion to dismiss).

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

for judicial notice. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)

(“Courts may only take judicial notice of adjudicative facts that are ‘not subject to

reasonable dispute.’” (quoting Fed. R. Evid. 201(b))); Lee, 250 F.3d at 689 (setting

forth standard of review).

The district court did not abuse its discretion by denying leave to amend

3 19-15161 because amendment would be futile. See Cafasso, U.S. ex rel. v. Gen. Dynamics

C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (setting forth the standard of

review and explaining that a “district court’s discretion to deny leave to amend is

particularly broad where [the] plaintiff has previously amended the complaint”

(citation and internal quotation marks omitted)).

We reject as unsupported by the record Malasky’s contentions that the

district court violated his constitutional rights or that the district court failed to give

“full faith and credit” to his marital settlement agreement.

AFFRIMED.

4 19-15161