William Rupert v. Susan Bond

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WILLIAM RUPERT, No. 15-15831

Plaintiff-Appellant, D.C. No. 5:12-cv-05292-BLF

v. MEMORANDUM* SUSAN BOND; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding

Submitted June 7, 2019**

Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges.

William Rupert appeals pro se from the district court’s judgment dismissing

his action alleging violations of state law and the Racketeer Influenced and Corrupt

Organizations Act (“RICO”) relating to a dispute arising out of Oregon estate

plans. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Hebbe

* 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). v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (dismissal under Fed. R. Civ. P.

12(b)(6)); Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127

(9th Cir. 2010) (personal jurisdiction); Kearney v. Foley & Lardner, LLP, 590 F.3d

638, 643 (9th Cir. 2009) (dismissal based on Noerr–Pennington). We affirm.

The district court properly determined that the California based defendants

are immune from liability under the Noerr–Pennington doctrine because Rupert

failed to allege facts sufficient to show that the defendants’ actions to defend

against Rupert’s prior lawsuit were objectively baseless or deprived the litigation

of its legitimacy. See id. at 643-644 (under Noerr–Pennington, “those who petition

any department of the government for redress are generally immune from statutory

liability for their petitioning conduct” (citation omitted)); see also Freeman v.

Lasky, Haas & Cohler, 410 F.3d 1180, 1184 (9th Cir. 2005) (explaining

circumstances where the “sham litigation” exception to the Noerr–Pennington

doctrine applies).

The district court properly dismissed all claims against the non-resident

defendants for lack of personal jurisdiction. See Walden v. Fiore, 134 S. Ct. 1115,

1121-23 (2014) (discussing the requirements for specific personal jurisdiction and

stating that “the plaintiff cannot be the only link between the defendant and the

forum”); Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801-802 (9th

Cir. 2004) (requirements for general and specific personal jurisdiction); Butcher’s

2 15-15831 Union Local No. 498, United Food & Comm. Workers v. SDC Inv., Inc., 788 F.2d

535, 539 (9th Cir. 1986) (requirements for nationwide service in an action alleging

RICO violations).

The district court did not abuse its discretion in dismissing Rupert’s

complaint without leave to amend. See Cervantes v. Countrywide Home Loans,

Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and

explaining that a district court may dismiss without leave where amendment would

be futile); see also Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002)

(district court’s discretion to deny leave to amend is particularly broad when it has

afforded plaintiff one or more opportunities to amend).

The district court did not abuse its discretion by denying Rupert’s motions

under Fed. R. Civ. P. 59(e) and 60(b) because Rupert failed to demonstrate any

grounds for such relief. See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS,

Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and

listing grounds warranting reconsideration under Fed. R. Civ. P. 59(e) and 60(b)).

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

in the opening brief or arguments raised for the first time on appeal. See Padgett v.

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

Plaintiff’s request for oral argument (Docket Entry No. 63) is denied.

AFFIRMED.

3 15-15831