Yuri Lee v. Select Portfolio Serv., Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 24, 2019
• Docket: 19-55020
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In the Matter of: No. 19-55020

YURI LEE, D.C. No. 2:18-cv-06851-JFW

Debtor. MEMORANDUM* ------------------------------

YURI LEE,

Appellant,

v.

SELECT PORTFOLIO SERVICING, INC.; WAMU MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR12 TRUST,

Appellees.

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Submitted October 15, 2019**

* 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). Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

Chapter 13 debtor Yuri Lee appeals pro se from the district court’s judgment

affirming the bankruptcy court’s order dismissing Lee’s adversary proceeding. We

have jurisdiction under 28 U.S.C. § 158(d). We review de novo a district court’s

decision on appeal from a bankruptcy court, and apply the same standards of

review the district court applied to the bankruptcy court’s decision. Christensen v.

Tucson Estates, Inc. (In re Tucson Estates, Inc.), 912 F.2d 1162, 1166 (9th Cir.

1990). We may affirm on any ground supported by the record. Shanks v. Dressel,

540 F.3d 1082, 1086 (9th Cir. 2008). We affirm.

The bankruptcy court did not abuse its discretion by retaining jurisdiction

over Lee’s adversary proceeding after granting Lee’s motion for voluntary

dismissal of the bankruptcy case. See Carraher v. Morgan Elecs., Inc. (In re

Carraher), 971 F.2d 327, 328 (9th Cir. 1992) (setting forth standard of review and

explaining that the bankruptcy court may retain jurisdiction over a related

proceeding after dismissal of the bankruptcy case, subject to considerations of

judicial economy, fairness, convenience and comity).

Dismissal of Lee’s adversary action was proper because Lee failed to allege

facts sufficient to state a plausible claim for relief. See Fed. R. Civ. P. 12(b)(6);

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

2 19-55020 plausible on its face” (citation and internal quotation marks omitted)). Contrary to

Lee’s contention, the bankruptcy court was not required to state findings or

conclusions in its dismissal order. See Fed. R. Civ. P. 52(a)(3) (“The court is not

required to state findings or conclusions when ruling on a motion under Rule 12

. . . .”); Fed. R. Bankr. P. 7052 (providing that Federal Rule of Civil Procedure 52

applies in adversary proceedings); Mitchell v. Occidental Ins., Medicare, 619 F.2d

28, 30 (9th Cir. 1980) (under Federal Rule of Civil Procedure 52, “no findings [of

fact and law] are necessary in judgments on motions to dismiss”).

The bankruptcy court did not abuse its discretion by dismissing Lee’s action

without leave to amend because amendment would have been futile. See

Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (setting

forth standard of review and explaining that the court need not grant leave to

amend if amendment would be futile).

We reject as unsupported by the record Lee’s contention that the removal of

her action to federal court was improper. See 28 U.S.C. § 1446(c) (the deadline to

file a notice of removal is 30 days after defendant is served with a summons and

complaint); Cal. Code Civ. Pro. § 415.30 (providing that service of a summons

pursuant to that section is complete on the date a written acknowledgment of

receipt of summons is executed); Cal. Code Civ. Pro. § 415.40 (providing that

service of summons is complete on the tenth day after the mailing pursuant to that

3 19-55020 section).

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.

4 19-55020