Nationstar Mortgage, LLC v. Patrick Soria

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 15, 2019
• Docket: 18-55728
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 15 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NATIONSTAR MORTGAGE LLC, No. 18-55728

Plaintiff-Appellee, D.C. No. 2:18-cv-03041-DSF-RAO v.

PATRICK JOSEPH SORIA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Submitted February 13, 2019** Pasadena, California

Before: FISHER, CALLAHAN, and OWENS, Circuit Judges.

Defendant-Appellant Patrick Joseph Soria (“Soria”) appeals pro se from the

district court’s order granting a preliminary injunction and appointing a permanent

receiver in an action brought by Plaintiff-Appellee Nationstar Mortgage LLC

(“Nationstar”). As the parties are familiar with the facts, we do not recount them

* 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). here. We affirm.1

1. As a preliminary matter, Soria argues for the first time on appeal that

Nationstar lacks “standing.” He appears to contend that Nationstar lacks

prudential or statutory standing, which he has waived by failing to raise these

issues in the district court. See Bilyeu v. Morgan Stanley Long Term Disability

Plan, 683 F.3d 1083, 1090 (9th Cir. 2012) (“Unlike constitutional standing, which

is jurisdictional, we presume that statutory standing may be waived.”); Laub v.

U.S. Dep’t of Interior, 342 F.3d 1080, 1087 n.6 (9th Cir. 2003) (noting that

prudential standing is waivable if not raised in the district court).

Even if Soria is raising Article III standing, which cannot be waived, his

argument fails because Nationstar has met the “case-or-controversy” requirement

of Article III. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).

2. Soria also argues that the district court lacked personal jurisdiction over

him because Nationstar failed to serve him with a copy of a temporary restraining

order (“TRO”) by a court-imposed deadline. However, this court-imposed

deadline for serving the TRO is unrelated to personal jurisdiction. See Travelers

Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (“A

federal court is without personal jurisdiction over a defendant unless the defendant

1 We grant Nationstar’s motion to supplement the record on appeal (Dkt. No. 15).

2 has been served [with the summons and complaint] in accordance with Fed. R.

Civ. P. 4.” (citation omitted)). Soria does not dispute that, after this court-imposed

deadline but prior to the preliminary injunction, he was properly personally served

under Rule 4. See id. (“So long as a party receives sufficient notice of the

complaint, Rule 4 is to be ‘liberally construed’ to uphold service.” (citation

omitted)); see also J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880 (2011)

(noting that a court may have personal jurisdiction due to the defendant’s

“[p]resence within a State at the time suit commences through service of process”).

Moreover, the record reflects that Soria was also served with a copy of the

summons, complaint, and TRO by substitute service before the court-imposed

deadline.

3. In addition, Soria challenges the district court’s entry of a preliminary

injunction. The district court did not abuse its discretion by entering a preliminary

injunction after finding that all four Winter factors weighed in favor of a

preliminary injunction. See Short v. Brown, 893 F.3d 671, 675-76 (9th Cir. 2018)

(citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).

Soria primarily asserts that the district court erred in entering a preliminary

injunction because Nationstar had “unclean hands.” However, Soria fails to show

that Nationstar had “unclean hands” that “militate against issuing an injunction that

otherwise meets Winter’s requirements.” Inst. of Cetacean Research v. Sea

3 Shepherd Conservation Soc’y, 725 F.3d 940, 947 (9th Cir. 2013). Soria also

improperly relies on new evidence submitted for the first time on appeal. See

United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not

presented to the district court are not part of the record on appeal.”).

4. Finally, Soria appears to challenge the district court’s appointment of a

permanent receiver. However, Soria fails to provide any supporting argument, and

therefore he has waived this issue. See Miller v. Fairchild Indus., Inc., 797 F.2d

727, 738 (9th Cir. 1986) (noting that this court “will not ordinarily consider matters

on appeal that are not specifically and distinctly argued in appellant’s opening

brief”).

Furthermore, even if Soria did not waive this issue, the district court did not

abuse its discretion by appointing a permanent receiver. See Canada Life

Assurance Co. v. LaPeter, 563 F.3d 837, 844 (9th Cir. 2009) (setting forth standard

of review and factors for appointment of receiver).

AFFIRMED.