Kim Kerrigan v. Qualstar Credit Union

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 29, 2018
• Docket: 17-35174
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KIM KERRIGAN, No. 17-35174

Plaintiff-Appellant, D.C. No. 2:16-cv-01528-JCC

v. MEMORANDUM* QUALSTAR CREDIT UNION; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Submitted June 12, 2018**

Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.

Kim Kerrigan appeals from the district court’s judgment dismissing her

action alleging Fair Debt Collection Practices Act and Washington state law claims

arising from foreclosure proceedings. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo a dismissal for failure to state a claim under Federal

* 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). Rule of Civil Procedure 12(b)(6). Thompson v. Paul, 547 F.3d 1055, 1058 (9th

Cir. 2008). We affirm.

The district court properly dismissed Kerrigan’s quiet title claim because

Kerrigan failed to allege facts sufficient to show that the statute of limitations bars

any threatened foreclosure action. See Wash. Rev. Code § 7.28.300 (providing for

quiet title action by record owner of real estate where an action to foreclose on a

mortgage or deed of trust on the real estate would be barred by the statute of

limitations); Edmundson v. Bank of Am., N.A., 378 P.3d 272, 276-77 (Wash. Ct.

App. 2016) (stating that “the deed of trust foreclosure remedy is subject to a six-

year statute of limitations” and “when recovery is sought on an obligation payable

by installments, the statute of limitations runs against each installment from the

time it becomes due”); Bingham v. Lechner, 45 P.3d 562, 566-68 (Wash. Ct. App.

2002) (holding that the commencement of a nonjudicial foreclosure tolls the statute

of limitations).

The district court did not abuse its discretion by denying Kerrigan’s request

for certification to the Washington Supreme Court because Kerrigan failed to show

that Washington law regarding whether a nonjudicial foreclosure tolls the statute of

limitations for reinstituting foreclosure “has not been clearly determined.” Wash.

Rev. Code § 2.60.020; see Thompson, 547 F.3d at 1059 (standard of review);

Bingham, 45 P.3d at 566-68.

2 17-35174 The district court did not abuse its discretion by denying Kerrigan’s request

for leave to amend the complaint because amendment would be futile. See

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)

(setting forth standard of review and explaining that dismissal without leave to

amend is permitted when amendment would be futile).

The district court did not abuse its discretion by denying Kerrigan’s Federal

Rule of Civil Procedure 59(e) and 60(b) motion because Kerrigan did not establish

any basis for relief. See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5

F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and grounds

for relief under Rule 59(e) and Rule 60(b)).

We reject as meritless Kerrigan’s contention that the district court lacked

subject matter jurisdiction over this case. See 28 U.S.C. § 1331 (granting

jurisdiction over civil actions arising under federal law).

AFFIRMED.

3 17-35174