Paul Lucore v. Bank of America, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2023
• Docket: 22-56117
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PAUL M. LUCORE, No. 22-56117

Plaintiff-Appellant, D.C. No. 3:22-cv-00220-TWR-MDD

v. MEMORANDUM* BANK OF AMERICA, NA; WELLS FARGO BANK, N.A., as Trustee for the Certificate Holders of the LMT 2006-9 Trust; CATAMOUNT PROPERTIES 2018, LLC; DOES, 1 through 50, inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding

Submitted August 15, 2023**

Before: TASHIMA, S.R. THOMAS, and FORREST, Circuit Judges.

Paul M. Lucore appeals pro se from the district court’s judgment dismissing

his diversity action arising out of foreclosure proceedings. We have jurisdiction

* 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). under 28 U.S.C. § 1291.1 We review de novo a district court’s dismissal under

Federal Rule of Civil Procedure 12(b)(6) based on claim preclusion. Holcombe v.

Hosmer, 477 F.3d 1094, 1097 (9th Cir. 2007). We affirm.

The district court properly dismissed Lucore’s action as barred by the

doctrine of claim preclusion because Lucore brought or could have brought his

claims in his prior federal court action, which involved the same parties or their

privies and resulted in a final judgment on the merits. See Owens v. Kaiser Found.

Health Plan, Inc., 244 F.3d 708, 713-14 (9th Cir. 2001) (setting forth elements of

federal claim preclusion); see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Planning Agency, 322 F.3d 1064, 1078 (9th Cir. 2003) (“It is immaterial whether

the claims asserted [in the subsequent action] were actually pursued in the

[previous] action . . . ; rather, the relevant inquiry is whether they could have been

brought.” (citation omitted)).

The district court did not abuse its discretion by dismissing without leave to

amend 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 proper if amendment

1 Contrary to appellees’ contention, Lucore’s notice of appeal was timely filed. See Fed. R. App. P. 26(a)(1)(C); Yepremyan v. Holder, 614 F.3d 1042, 1044 (9th Cir. 2010) (as a judicial holiday under California state law, the day after Thanksgiving qualifies as a legal holiday under Federal Rule of Appellate Procedure 26(a)).

2 22-56117 would be futile).

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

for relief from judgment because Lucore failed to demonstrate any basis for relief.

See Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-

63 (9th Cir. 1993) (setting forth standard of review and grounds for relief under

Federal Rule of Civil Procedure 59(e) or 60(b)).

We do not consider matters not specifically and distinctly raised and argued

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

AFFIRMED.

3 22-56117