James Drury v. Barcelona Holdings, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 5, 2019
• Docket: 17-17217
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 5 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAMES ROBERT DRURY, No. 17-17217

Plaintiff-Appellant, D.C. No. 2:15-cv-02048-CWH

v. MEMORANDUM* BARCELONA HOLDINGS, LLC, DBA Siegel Slots and Suites; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Carl W. Hoffman, Magistrate Judge, Presiding**

Submitted March 1, 2019***

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

James Robert Drury appeals pro se from the district court’s summary

judgment in his diversity action alleging state law tort claims arising from a dispute

* 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). over the allocation of municipally imposed taxes. We have jurisdiction under 28

U.S.C. § 1291. We review de novo, and we may affirm on any grounds supported

by the record. Shanks v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008). We affirm.

Summary judgment was proper on Drury’s claims based on his purported

entitlement to tax refunds under Clark County Code § 4.08 because Drury failed to

raise a genuine dispute of material fact as to whether he was entitled to the funds as

a result of defendants’ purported overpayment of the county’s transient lodging

tax. See Clark County Code § 4.08.010(b), (c) (transient lodging tax constitutes a

debt owed by lodging establishment whether or not establishment passes cost on to

guests).

The district court properly granted summary judgment on Drury’s claim for

“retaliatory eviction” under Nev. Rev. Stat. § 118A.510 because Drury failed to

raise a genuine dispute of material fact as to whether Drury suffered damages for

which the statute provides a remedy. See Nev. Rev. Stat. §§ 118A.390,

118A.510(2) (identifying remedies available to tenant for landlord’s violation of

§ 118A.510(1)); Paullin v. Sutton, 724 P.2d 749, 751 (Nev. 1986) (punitive

damages not recoverable on retaliatory eviction claim).

The district court did not abuse its discretion by denying Drury’s requests

for entry of default and default judgment under Fed. R. Civ. P. 55 because

defendants appeared and timely filed documents indicating an intent to defend

2 17-17217 themselves in the action. See Fed. R. Civ. P. 55(a) (permitting the entry of default

only when a defendant “has failed to plead or otherwise defend”); Direct Mail

Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 689 (9th Cir.

1988) (default judgment inappropriate if defendant indicates its intent to defend the

action); see also Eitel v. McCool, 782 F.2d 1470, 1471- 72 (9th Cir. 1986) (setting

forth standard of review and discussing process for obtaining default judgment).

We do not consider arguments raised for the first time on appeal or 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).

Drury’s arguments on his behalf are meritless to the point of being frivolous.

The district court’s decisions were supported by the record and correct in all

respects.

Drury’s request for judicial notice and motion for “pacer access and fee

waiver” (Docket Entry Nos. 14, 24) are denied.

AFFIRMED.

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