MARK WADE McCUNE v. Phh Mortgage Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK WADE McCUNE,
Plaintiff-Appellant,
v.
PHH MORTGAGE CORPORATION,
Defendant-Appellee.
No. 20-15839
D.C. No. 4:19-cv-00525-CKJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted August 17, 2021**
Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Mark Wade McCune appeals pro se from the district court’s judgment
dismissing his action alleging federal and state law claims. We have jurisdiction
under 28 U.S.C § 1291. We review de novo a dismissal for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). Dougherty v. City of Covina, 654
* 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
AUG 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 20-15839
F.3d 892, 897 (9th Cir. 2011). We affirm.
The district court properly dismissed McCune’s action because McCune
failed to allege facts sufficient to state any plausible claim. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (a plaintiff must present factual allegations sufficient to
state a plausible claim for relief); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969,
973 (9th Cir. 2004) (“[T]he court is not required to accept legal conclusions cast in
the form of factual allegations if those conclusions cannot reasonably be drawn
from the facts alleged.”); see also Fed. R. Civ. P. 9(b) (claims for fraud must be
pleaded with particularity).
We reject as without merit McCune’s contention that the district court was
required to hold an evidentiary hearing prior to dismissing McCune’s action.
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).
McCune’s motions requesting oral argument (Docket Entry Nos. 35 and 36)
are denied.
AFFIRMED.

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