Merri Clark v. Annette Phelps

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 30, 2025
• Docket: 23-35275
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 30 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MERRI SUE CLARK; RICHARD Nos. 23-35275 WARREN CLARK, 23-35554

Plaintiffs-Appellants, D.C. No. 6:21-cv-01139-MC

v. MEMORANDUM* ANNETTE PHELPS; APRIL CURTIS; MEDIATION CASE MANAGER; LSF9 MASTER PARTICIPATION TRUST; QUALITY LOAN SERVICE CORPORATION OF WASHINGTON; U.S. BANK TRUST, N.A., as Trustee for LSF9 Master Participation Trust; CALIBER HOME LOANS, INC.; COURTNEY RUIZ; CANOPY SOFTWARE, INC.; FAY SERVICING, LLC; LSF9 MORTGAGE HOLDINGS, LLC; CHRISTOPHER BURKE; DOES, 1-10, inclusive,

Defendants-Appellees.

Appeals from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted April 22, 2025**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes these cases are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: GRABER, H.A. THOMAS, and JOHNSTONE, Circuit Judges.

Merri Sue Clark and Richard Warren Clark appeal pro se from the district

court’s orders denying their motion to remand their foreclosure-related action and

awarding defendants attorney’s fees and costs. We have jurisdiction under 28

U.S.C. § 1291. We review de novo subject matter jurisdiction and denials of

motions to remand, Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1315 (9th Cir.

1998), and for an abuse of discretion an award of fees and costs made under state

law, Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 898 (9th Cir.

2006). We affirm.

The district court properly denied the Clarks’ motion to remand because it

correctly determined that Phelps and Curtis, the only non-diverse defendants, were

fraudulently joined to defeat diversity jurisdiction. See Hunter v. Philip Morris

USA, 582 F.3d 1039, 1043 (9th Cir. 2009) (“Although an action may be removed

to federal court only where there is complete diversity of citizenship, one exception

to the requirement for complete diversity is where a non-diverse defendant has

been fraudulently joined.” (citations and internal quotation marks omitted));

Grancare, LLC v. Thrower ex. rel. Mills, 889 F.3d 543, 548 (9th Cir. 2018)

(explaining that fraudulent joinder may be established “if a defendant shows that

an individual[] joined in the action cannot be liable on any theory” (citation and

internal quotation marks omitted)).

2 23-35275 The district court did not err in awarding attorney’s fees and costs to

defendants U.S. Bank and Caliber Home Loans, Inc. because the promissory note

and deed of trust the Clarks signed entitle the lender and its successors to expenses

incurred in defending the loan. See Kona Enters., Inc. v. Est. of Bishop, 229 F.3d

877, 883 (9th Cir. 2000) (“A federal court sitting in diversity applies the law of the

forum state regarding an award of attorneys’ fees.”); Autolend, IAP, Inc. v. Auto

Depot, Inc., 11 P.3d 693, 695 (Or. Ct. App. 2000) (explaining that “a party in

whose favor final judgment is entered may recover attorney fees . . . when they are

authorized by statute or a specific contractual provision”).

We do not consider arguments and allegations raised for the first time on

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

AFFIRMED.

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