Myong Suk Oh, an individual v. RECONTRUST COMPANY, N.A., a US corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MYONG SUK OH, an individual,
Plaintiff-Appellant,
v.
RECONTRUST COMPANY, N.A., a US
corporation and wholly owned subsidiary of
Bank of America Corporation; et al.,
Defendants-Appellees.
No. 22-55711
D.C. No.
8:21-cv-01808-MCS-ADS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Mark C. Scarsi, District Judge, Presiding
Submitted October 20, 2023**
Pasadena, California
Before: PAEZ and H.A. THOMAS, Circuit Judges, and R. COLLINS,*** District
Judge.
* 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).
*** The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
FILED
NOV 9 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Myong Suk Oh appeals the district court’s June 27, 2022 order denying her
motion for declaratory judgment and dismissing Defendants-Appellees ReconTrust
Company, N.A. and MTC Financial, Inc.1 We have jurisdiction under 28 U.S.C. §
1291. We review de novo a district court’s denial of declaratory relief. Or. Coast
Scenic R.R. v. Or. Dep’t of State Lands, 841 F.3d 1069, 1072 (9th Cir. 2016). We
review for an abuse of discretion a district court’s dismissal of a party for failure to
prosecute, Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996), and failure to
serve, Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002).
Oh claims the district court’s failure to hold oral argument violated her due
process rights. However, the court had discretion to rule without oral argument.
Fed. R. Civ. P. 78(b); C.D. Cal. R. 7-15.
Oh next argues the district court’s ruling demonstrated judicial bias.
However, judicial bias cannot be based merely upon adverse rulings. See United
States v. Johnson, 610 F.3d 1138, 1148 (9th Cir. 2010).
The district court’s denial of Oh’s motion for declaratory judgment on the
pleadings was appropriate because neither MTC nor ReconTrust had answered the
complaint. See Doe v. United States, 419 F.3d 1058, 1061 (9th Cir. 2005)
1 Although Defendants-Appellees Bank of New York Mellon, Auction.com, and
Bayview Loan Servicing filed responsive briefs, Oh concedes they are not intended
appellees and she is not challenging the district court's June 1, 2022 order or final
judgment dismissing these parties.

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(concluding a judgment on the pleadings prior to an answer is premature); Fed. R.
Civ. P. 12(c) (providing a party may move for judgment on the pleadings “[a]fter
the pleadings are closed”).
Dismissal of MTC was not an abuse of discretion because Oh did not
respond to the district court’s order to show cause as to why MTC should not be
dismissed for failure to prosecute. Edwards v. Marin Park, Inc., 356 F.3d 1058,
1065 (9th Cir. 2004) (“The failure of the plaintiff eventually to respond to the
court’s ultimatum . . . is properly met with the sanction of a Rule 41(b)
dismissal.”).
Finally, dismissal of ReconTrust was not an abuse of discretion because Oh
had notice of possible dismissal and an opportunity to show good cause for the
failure to serve. Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013). In
response to the district court’s order to show cause, Oh did not rectify service or
demonstrate good cause, but merely reiterated her failed service attempts and
argued the merits of her underlying claim.
AFFIRMED.

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