                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 30 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TIMOTHY ALGAIER; DEBRA EDDY,                    No. 15-35895

                Plaintiffs-Appellants,          D.C. No. 2:13-cv-00380-TOR

 v.
                                                MEMORANDUM*
BANK OF AMERICA, N.A., a national
bank doing business in Washington state;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., a
corporation doing business in Washington
state,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Thomas O. Rice, Chief Judge, Presiding

                             Submitted May 24, 2017**

Before:      THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.

      Timothy Algaier and Debra Eddy appeal pro se from the district court’s



      *
             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).
summary judgment in their diversity action alleging state law claims related to an

alleged loan modification. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Vasquez v. County of Los Angeles, 349 F.3d 634, 639 (9th Cir.

2004). We affirm.

      The district court properly granted summary judgment on plaintiffs’ breach

of contract claim because plaintiffs failed to raise a genuine dispute of material fact

as to whether a contract was formed regarding credits or whether Bank of America

breached the loan agreement. See Lehrer v. State, Dep’t of Soc. & Health Servs., 5

P.3d 722, 727 (Wash. Ct. App. 2000) (setting forth elements of breach of contract

claim under Washington law).

      The district court properly granted summary judgment on plaintiffs’

promissory estoppel claim because plaintiffs failed to raise a genuine dispute of

material fact as to whether the alleged oral promise satisfied the statute of frauds.

See Greaves v. Med. Imaging Sys., Inc., 879 P.2d 276, 283 (Wash. 1994)

(concluding that oral contract was unenforceable under theory of promissory

estoppel because it failed to satisfy the statute of frauds’ writing requirement).

      The district court properly granted summary judgment on plaintiffs’ fraud

claim because plaintiffs failed to raise a genuine dispute of material fact as to

whether plaintiffs reasonably relied on a misrepresentation by Bank of America.

See Elcon Const., Inc. v. E. Wash. Univ., 273 P.3d 965, 970 (Wash. 2012) (setting


                                           2                                    15-35895
forth elements of fraud claim under Washington law).

      The district court did not abuse its discretion in denying plaintiffs’ motion to

strike defendants’ declarations because the declarations were made with personal

knowledge. See Fed. R. Civ. P. 56(c)(4) (requiring that a declaration be made on

personal knowledge); see also Hambleton Bros. Lumber Co. v. BalkinEnters., Inc.,

397 F.3d 1217, 1224 n.4 (9th Cir. 2005) (setting forth standard of review for a

motion to strike).

      The district court did not abuse its discretion by granting defendants’ motion

to strike plaintiffs’ submissions because the untimely disclosures were not

substantially justified or harmless. See Fed. R. Civ. P. 37(c)(1) (providing for

exclusion of evidence if a party fails to comply with Fed. R. Civ. P. Rule 26(a)

unless the failure was substantially justified or is harmless); see also Hambleton

Bros. Lumber Co., 397 F.3d at 1224 n.4 (setting forth standard of review for a

motion to strike).

      We reject as unsupported by the record plaintiffs’ contentions regarding the

district court’s evidentiary findings.

      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).

      AFFIRMED.




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