Michelle Blackwell v. Wells Fargo Bank, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 28, 2021
• Docket: 19-55994
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 28 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHELLE S. BLACKWELL, No. 19-55994

Plaintiff-Appellant, D.C. No. 2:19-cv-02307-R-PLA

v. MEMORANDUM* WELLS FARGO BANK, N.A., on behalf of Morgan Stanley abs Capital 1, Inc. Trust 2005-WMC6, Mortgage Pass-Through Certificates, Series 2005-WMC6; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Submitted January 20, 2021**

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.

Michelle S. Blackwell appeals pro se from the district court’s orders

dismissing Blackwell’s action alleging federal and state law claims arising out of

foreclosure proceedings and declaring Blackwell a vexatious litigant. We have

* 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). jurisdiction under 28 U.S.C. § 1291. We review de novo the existence of subject

matter jurisdiction. Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015). We

review for an abuse of discretion the district court’s dismissal of the action for

failure to comply with local rules. Henderson v. Duncan, 779 F.2d 1421, 1423

(9th Cir. 1986). We affirm.

The district court properly assumed subject matter jurisdiction over

Blackwell’s action because Blackwell alleged a claim under the Fair Debt

Collection Practices Act and therefore the district court had federal question

jurisdiction. See 28 U.S.C. § 1331; Rivet v. Regions Bank of La., 522 U.S. 470,

475 (1998) (to establish jurisdiction under § 1331, a federal question must be

“presented on the face of the plaintiff’s properly pleaded complaint” (citation and

internal quotation marks omitted)).

The district court did not abuse its discretion by dismissing Blackwell’s

action after Blackwell failed to file an opposition to defendants’ motion to dismiss.

See C.D. Cal. L.R. 7-12 (providing that “failure to file any required document…”

may be deemed consent to the granting or denial of the motion); Henderson, 779

F.2d at 1423.

The district court did not abuse its discretion by striking Blackwell’s first

amended complaint because Blackwell did not file it within 21 days of defendants’

filing a responsive pleading. See Fed. R. Civ. P. 15(a)(1)(B); Preminger v. Peake,

2 19-55994 552 F.3d 757, 769 n.11 (9th Cir. 2008) (setting forth the standard of review for a

district court’s decision concerning its management of litigation). The district

court did not abuse its discretion by denying Blackwell’s subsequent motion for

leave to file the amended complaint because any amendment would have been

futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th

Cir. 2011) (setting forth standard of review and stating that leave to amend may be

denied where amendment would be futile).

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

to reconsider the district court’s orders granting defendants’ motion to dismiss,

declaring Blackwell a vexatious litigant, and denying leave to amend because

Blackwell failed to demonstrate that she was entitled to relief. See Fed. R. Civ. P.

60(b); Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255,

1263 (9th Cir. 1993) (setting forth elements for reconsideration under Rule 60(b)

of the Federal Rules of Civil Procedure).

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).

AFFIRMED.

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