Benjamin Allen; Rachel Flower v. WILMINGTON TRUST, N.A., As Trustee on behalf of ARLP Securitization Trust, Series 2014-2

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN ALLEN; RACHEL FLOWER,
Plaintiffs-Appellants,
v.
WILMINGTON TRUST, N.A., As Trustee
on behalf of ARLP Securitization Trust,
Series 2014-2; et al.,
Defendants-Appellees.
No. 18-15030
D.C. No. 3:17-cv-00154-LRH-
WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Benjamin Allen and Rachel Flower appeal from the district court’s order
dismissing their action alleging federal and state law claims arising from
foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We
* 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 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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review de novo. San Remo Hotel L.P. v. San Francisco City & County, 364 F.3d
1088, 1094 (9th Cir. 2004) (dismissal on the basis of issue preclusion); Lee v. City
of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001) (dismissal under Fed. R. Civ. P.
12(b)(6)). We affirm.
The district court properly dismissed plaintiffs’ action as barred by the
doctrine of issue preclusion because all the requirements for the application of the
doctrine were met. See Ross v. Alaska, 189 F.3d 1107, 1110 (9th Cir. 1999)
(federal courts apply state law to determine issue preclusion); Five Star Capital
Corp. v. Ruby, 194 P.3d 709, 713 (Nev. 2008) (elements of issue preclusion under
Nevada law). Contrary to plaintiffs’ contention, the issues raised in their prior
state court proceedings and this action are identical, and were necessarily and
actually litigated because the state court addressed both defendants’ authority to
foreclose and plaintiffs’ standing to challenge that authority. See Wood v.
Germann, 331 P.3d 859, 860 n.3 (Nev. 2014) (per curiam) (explaining that certain
challenges to the veracity of a lender’s loan documents fall within the scope of
Nevada’s foreclosure mediation program’s judicial review process since those
challenges implicate the lender’s authority to foreclose).
The district court did not abuse its discretion by taking judicial notice of
certain public records without a formal hearing because plaintiffs had an
opportunity to be heard on the issue of judicial notice by filing objections to the

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request for judicial notice and an opposition to defendants’ motion to dismiss. See
Fed. R. Evid. 201(e); Lee, 250 F.3d at 689-90 (setting forth standard review, and
explaining the circumstances in which the district court may take judicial notice of
matters of public record in ruling on a motion to dismiss for failure to state a
claim).
AFFIRMED.

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