Myong Oh v. Reconstrust Company, Na

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 9, 2023
• Docket: 22-55711
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 9 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MYONG SUK OH, an individual, No. 22-55711

Plaintiff-Appellant, D.C. No. 8:21-cv-01808-MCS-ADS v.

RECONTRUST COMPANY, N.A., a US MEMORANDUM* corporation and wholly owned subsidiary of Bank of America Corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Mark C. Scarsi, District Judge, Presiding

Submitted October 20, 2023** Pasadena, California

Before: PAEZ and H.A. THOMAS, Circuit Judges, and R. COLLINS,*** District Judge.

* 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). *** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. Myong Suk Oh appeals the district court’s June 27, 2022 order denying her

motion for declaratory judgment and dismissing Defendants-Appellees ReconTrust

Company, N.A. and MTC Financial, Inc.1 We have jurisdiction under 28 U.S.C. §

1291. We review de novo a district court’s denial of declaratory relief. Or. Coast

Scenic R.R. v. Or. Dep’t of State Lands, 841 F.3d 1069, 1072 (9th Cir. 2016). We

review for an abuse of discretion a district court’s dismissal of a party for failure to

prosecute, Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996), and failure to

serve, Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002).

Oh claims the district court’s failure to hold oral argument violated her due

process rights. However, the court had discretion to rule without oral argument.

Fed. R. Civ. P. 78(b); C.D. Cal. R. 7-15.

Oh next argues the district court’s ruling demonstrated judicial bias.

However, judicial bias cannot be based merely upon adverse rulings. See United

States v. Johnson, 610 F.3d 1138, 1148 (9th Cir. 2010).

The district court’s denial of Oh’s motion for declaratory judgment on the

pleadings was appropriate because neither MTC nor ReconTrust had answered the

complaint. See Doe v. United States, 419 F.3d 1058, 1061 (9th Cir. 2005)

1 Although Defendants-Appellees Bank of New York Mellon, Auction.com, and Bayview Loan Servicing filed responsive briefs, Oh concedes they are not intended appellees and she is not challenging the district court's June 1, 2022 order or final judgment dismissing these parties.

2 (concluding a judgment on the pleadings prior to an answer is premature); Fed. R.

Civ. P. 12(c) (providing a party may move for judgment on the pleadings “[a]fter

the pleadings are closed”).

Dismissal of MTC was not an abuse of discretion because Oh did not

respond to the district court’s order to show cause as to why MTC should not be

dismissed for failure to prosecute. Edwards v. Marin Park, Inc., 356 F.3d 1058,

1065 (9th Cir. 2004) (“The failure of the plaintiff eventually to respond to the

court’s ultimatum . . . is properly met with the sanction of a Rule 41(b)

dismissal.”).

Finally, dismissal of ReconTrust was not an abuse of discretion because Oh

had notice of possible dismissal and an opportunity to show good cause for the

failure to serve. Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013). In

response to the district court’s order to show cause, Oh did not rectify service or

demonstrate good cause, but merely reiterated her failed service attempts and

argued the merits of her underlying claim.

AFFIRMED.