MARLYS M. APPLETON, AKA Marlys Elavsky Appleton v. Sharyl A. Bohart; Sandra L. Hohn

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARLYS M. APPLETON, AKA Marlys
Elavsky Appleton,
Plaintiff-Appellant,
v.
SHARYL A. BOHART; SANDRA L.
HOHN,
Defendants-Appellees.
No. 18-35339
D.C. No. 2:17-cv-00327-TOR
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief Judge, Presiding
Submitted February 19, 2019**
Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.
Marlys M. Appleton AKA Marlys Elavsky Appleton appeals pro se from the
district court’s judgment dismissing her diversity action alleging various state law
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
* 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
FEB 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-35339
Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003)
(dismissal under Federal Rule of Civil Procedure 12(b)(1)); Lukovsky v. City &
County of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008) (dismissal based on
the applicable statute of limitations). We affirm.
The district court properly dismissed for lack of standing Appleton’s fraud,
unjust enrichment, and “constructive trust” claims because Appleton failed to
allege facts sufficient to show that she had a legally protected interest in the
property at issue. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)
(setting forth requirements for Article III standing).
The district court properly dismissed as time-barred Appleton’s undue
influence claim because Appleton failed to file her action within the applicable
three-year statute of limitations. See Wash. Rev. Code § 4.16.080(4) (three-year
limitations period for a fraud action begins to accrue upon “discovery by the
aggrieved party of the facts constituting the fraud”); Adventist Adoption & Family
Servs. v. Perry (In Interest of Perry), 641 P.2d 178, 180 (Wash. Ct. App. 1982)
(undue influence is a species of fraud); see also Strong v. Clark, 352 P.2d 183, 184
(Wash. 1960) (“Actual knowledge of the fraud will be inferred if the aggrieved
party, by the exercise of due diligence, could have discovered it. . . . When the

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facts upon which the fraud is predicated are contained in a written instrument
which is placed on the public record, there is constructive notice of its contents,
and the statute of limitations begins to run at the date of the recording of the
instrument.” (citations omitted)).
We reject as meritless Appleton’s contentions that the district court erred by
considering opposing counsel’s declaration and exhibits, refusing to accept her
allegations as true, and applying Washington law.
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.

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