Donald Catherine v. Clear Recon Corporation; Wells Fargo Bank, N.a.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD CATHERINE,
Plaintiff-Appellant,
v.
CLEAR RECON CORPORATION;
WELLS FARGO BANK, N.A.,
Defendants-Appellees.
No. 17-15687
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
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
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
* 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).
FILED
MAR 6 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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.

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