Opinion
No. 17-15687
03-06-2018
DONALD CATHERINE, Plaintiff-Appellant, v. CLEAR RECON CORPORATION; WELLS FARGO BANK, N.A., Defendants-Appellees.
NOT FOR PUBLICATION
D.C. No. 2:16-cv-00878-MCE-CKD MEMORANDUM Appeal from the United States District Court for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Donald Catherine appeals pro se from the district court's judgment dismissing his action alleging federal and state law claims arising from foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court's dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). We affirm.
The district court properly dismissed Catherine's Fair Debt Collection Practices Act ("FDCPA") claim because Catherine failed to allege facts sufficient to show that either defendant was a "debt collector" within the meaning of the FDCPA. See 15 U.S.C. § 1692a(6) (definition of "debt collector" under the FDCPA); Ho v. ReconTrust Co., NA, 858 F.3d 568, 572 (9th Cir. 2017) ("[A]ctions taken to facilitate a non-judicial foreclosure, such as sending the notice of default and notice of sale, are not attempts to collect 'debt' as that term is defined by the FDCPA."); Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1208 (9th Cir. 2013) (complaint "must plead factual content that allows the court to draw the reasonable inference" that defendant is a "debt collector" as defined by the FDCPA (citations and internal quotation marks omitted)).
The district court did not abuse its discretion by dismissing Catherine's FDCPA and dual tracking claims without leave to amend because amendment would be futile. See Cervantes, 656 F.3d at 1041 (setting forth standard of review and explaining that dismissal without leave to amend is proper when amendment would be futile).
We reject as without merit Catherine's contention that the magistrate judge lacked jurisdiction to rule on non-dispositive matters and to issue findings and recommendations to the district court judge. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a).
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).
Catherine's request for leave to add new claims, set forth in his opening brief, is denied.
All pending motions are denied.
AFFIRMED.