                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             OCT 23 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

RICHARD BELL, et al.,                            No. 12-16907

              Plaintiffs - Appellants,           D.C. No.
                                                 3:10-cv-00444-RCJ-WGC,
  v.

RECONTRUST COMPANY, N.A., et al.,
                                                 MEMORANDUM*
              Defendants - Appellees


                   Appeal from the United States District Court
                            for the District of Nevada
                    Robert C. Jones, District Judge, Presiding

                           Submitted October 9, 2014**
                            San Francisco, California

Before: W. FLETCHER and WATFORD, Circuit Judges, and DUFFY, District
Judge.***

       Plaintiffs-Appellants Robert and Sally Kelley, Michael F. McKeon, Nigel



        *
             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 Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
Rudlin, and Shane Snyder (“Plaintiffs”) filed suit against Defendants-Appellees

ReconTrust Company, N.A., Bank of America, N.A., and Countrywide Home

Loans, Inc. (“Defendants”) regarding foreclosure proceedings against Plaintiffs’

properties. This action is the second such lawsuit brought by Plaintiffs in

connection with the properties and the procedural history of Plaintiffs’ original

lawsuits is somewhat convoluted. While certain of Plaintiffs’ claims in the original

suits were joined in a multi-district case (“MDL”) in the District of Arizona, some

of the claims at issue, to the extent that they involved conduct related to loan

origination and were not strictly MERS-related, remained in Nevada federal

district court. See In Re: Mortgage Electronic Registration Systems (MERS)

Litigation, No. 2:09-md-02119-JAT (D. Ariz, filed December 7, 2009). We

affirmed the judgment of the district court on the issues relevant to this appeal in In

Re: Mortgage Electronic Registration Systems (MERS) Litigation, 754 F.3d 772

(9th Cir. 2014), though we reversed the district court’s judgment and remanded the

case to the district court regarding a claim under Arizona law irrelevant to the

instant Plaintiffs’ claims.

I.    Procedural History of Plaintiffs’ Claims

      Each Plaintiff in this case, filed on July 16, 2010, was party to an earlier case

involving the same properties and defendants. On April 5, 2010, in Nevada federal


                                           2
district court, Plaintiffs Robert and Sally Kelly filed suit against Defendants in

Kelley et al. v. Genuine Title et al., No. 3:10–cv–00192–RCJ–VPC. The case was

consolidated-in-whole with In Re: Mortgage Electronic Registration Systems

(MERS) Litigation, and dismissed with prejudice on October 3, 2011, and we

affirmed the dismissal. Plaintiffs Robert and Sally Kelley failed to join the

consolidated amended complaint in the multi-district case, so their claims were

dismissed for that reason, in addition to the reasons that the district court found to

dismiss the consolidated amended complaint.

      On November 6, 2009, in Nevada federal district court, Plaintiff Shane

Snyder filed suit against Defendants in Dalby v. Citimortgage, Inc., No.

3:09–cv–00659–RCJ–VPC. Dalby was consolidated-in-part with In Re: Mortgage

Electronic Registration Systems (MERS) Litigation. Though Plaintiff Shane

Snyder withdrew his original claims not consolidated in the MDL on July 2, 2010,

shortly before filing this subsequent lawsuit, he continued to litigate his MERS-

related claims in the MDL court. Those MDL claims were dismissed with

prejudice on October 3, 2011, and we affirmed the dismissal.

      On September 14, 2009, in Nevada federal district court, Plaintiffs Michael

McKeon and Nigel Rudlin filed suit against Defendants in Dalton v. Citimortgage,

Inc., No. 3:09–cv–00534–LDG-VPC. Dalton was consolidated-in-part with In Re:


                                           3
Mortgage Electronic Registration Systems (MERS) Litigation. Though Plaintiffs

McKeon and Rudlin withdrew their original claims not consolidated in the MDL

on July 2, 2010, shortly before filing this subsequent lawsuit, they continued to

litigate MERS-related claims in the MDL court. Those MDL claims were

dismissed with prejudice on October 3, 2011, and we affirmed the dismissal.

Plaintiffs’ claims in the original lawsuits involved the same properties, defendants,

and causes of action at issue in this case, and were brought with the same counsel.

      This appeal involves two issues: (i) the district court’s decision on March 30,

2011, to dismiss Plaintiffs’ suit as duplicative of previously filed actions,1 while

permitting Plaintiffs to amend the complaint to plead a promissory estoppel claim;

and (ii) the district court’s decision on August 3, 2012, granting Defendants’


      1
          Plaintiffs mischaracterize the issue on appeal as “whether [Plaintiffs] had
claims for breach of the covenant of good faith and fair dealing.” The district court
determined that most of the claims alleged by Plaintiffs in this suit were
duplicative of the causes of action in previously filed suits, and dismissed those
claims (including a claim for “Breach of the Covenant of Good Faith and Fair
Dealing in Contracts and/or Interference in Contractual Relations”) on that ground.
As for the “breach of the covenant of good faith and fair dealing,” the district court
determined at the March 7, 2011, hearing on Defendants’ motion to dismiss, that
the facts that Plaintiffs pled may have supported a promissory estoppel theory
based on Defendants’ conduct that occurred after the original suits were filed, and
allowed Plaintiffs to amend accordingly. Plaintiffs did amend to plead a
promissory estoppel claim. Properly put, the first issue on appeal is whether the
district court abused its discretion in determining that the claims dismissed,
including the claim for “breach of the covenant of good faith and fair dealing,”
were duplicative of a previous suit.
                                           4
motion to dismiss a promissory estoppel claim under Nevada law.2 This Court has

jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s judgment.

II.   The District Court’s Decision to Dismiss the Suit

      We review the district court’s decision to dismiss a duplicative claim for an

abuse of discretion. M.M. v. Lafayette Sch. Dist., 681 F.3d 1082, 1086 (9th Cir.

2012). The “abuse of discretion” test requires us to consider (i) whether the district

court identified the correct legal standard for decision on the issue before it and, to

determine (ii) “whether the district court’s findings of fact, and its application of

those findings of fact to the correct legal standard, were illogical, implausible, or

without support in inferences that may be drawn from facts in the record.” U.S. v.

Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).

      “[I]n assessing whether the second action is duplicative of the first, we

examine whether the causes of action and relief sought, as well as the parties or


      2
         Plaintiffs’ also identified the district court’s July 21, 2011, order in the
notice of appeal. In that order, the district court rejected Plaintiffs’ first attempt to
plead the promissory estoppel claim in lieu of the “breach of the covenant of good
faith and fair dealing” claim. Because Plaintiffs’ opening brief does not argue that
the district court’s decision was issued in error or in an abuse of discretion, we
conclude that any appeal of the July 21, 2011, order is waived. See Fed. R. App. P.
28(a)(8); Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 487
(9th Cir. 2010). In any event, the district court did not abuse its discretion in
dismissing the third amended complaint because Plaintiffs continued to plead
claims that dealt with the original loans and were therefore duplicative of earlier
litigation.
                                            5
privies to the action, are the same.” Adams v. Cal. Dep’t of Health Servs., 487 F.3d

684, 689 (9th Cir. 2007). The district court found that Plaintiffs had separately

filed actions in 2009 and 2010 naming the Defendants that concerned the same

foreclosed properties at issue in this case and dismissed the claims in this case that

were duplicative of the claims litigated in the previously filed cases. Plaintiffs do

not make any argument or cite any case law to explain how, if at all, the district

court abused its discretion in determining that their claims were duplicative of

claims in previously filed actions. That failure is grounds enough to affirm the

district court’s judgment. See Weston v. Lockheed Missiles & Space Co., 881 F.2d

814, 816 (9th Cir. 1989). There is nothing in the record that demonstrates that the

district court abused its discretion. We conclude that the district court did not

abuse its discretion when it dismissed the claims as duplicative of previously filed

actions.

III.   The District Court’s Decision to Dismiss the Promissory Estoppel Claim

       When the district court dismissed Plaintiffs’ claims as duplicative of a

previously filed lawsuit, it provided Plaintiffs the opportunity to amend their

complaint to include a claim for promissory estoppel for conduct that occurred

after the original suits were filed. Plaintiffs so amended the complaint and the

district court granted Defendants’ motion to dismiss the amended complaint for


                                           6
failure to state a claim. We review de novo the district court’s decision to grant a

motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6). Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012)

(en banc). A complaint need not state “detailed factual allegations,” but it must

contain sufficient factual matter to “state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We review de novo the

district court’s interpretation of state law. Coughlin v. Tailhook Ass’n, 112 F.3d

1052, 1055 (9th Cir. 1997).

      “Broadly speaking, Nevada follows the doctrine of promissory estoppel

articulated in the Restatement (Second) of Contracts.” Dynalectric Co. of Nev. v.

Clark & Sullivan Constructors, Inc., 255 P.3d 286, 288 (Nev. 2011). Under

Nevada law, the elements of promissory estoppel are:

      (1) the party to be estopped must be apprised of the true facts; (2) he
      must intend that his conduct shall be acted upon, or must so act that the
      party asserting estoppel has the right to believe it was so intended; (3)
      the party asserting the estoppel must be ignorant of the true state of facts;
      (4) he must have relied to his detriment on the conduct of the party to be
      estopped.

Pink v. Busch, 691 P.2d 456, 459 (Nev. 1984) (quoting Cheqer, Inc. v. Painters &

                                            7
Decorators Joint Comm., Inc., 655 P.2d 996, 998–99 (Nev. 1982)).

      In Nevada, a plaintiff must establish that the defendant made a definitive

promise to the plaintiff in order to establish a primary element of promissory

estoppel. See Vancheri v. GNLV Corp., 777 P.2d 366, 369 (Nev. 1989) (“The

doctrine of promissory estoppel, which embraces the concept of detrimental

reliance, is intended as a substitute for consideration, not as a substitute for an

agreement between the parties. Accordingly, the first prerequisite of the agreement

is a promise.” (citations omitted)). The amended complaint does not allege any

definitive promise to any of the Plaintiffs from any Defendants. Plaintiffs allege

that Defendant Bank of America, N.A.’s representatives–whom they do not

identify–told Plaintiffs that they could not be considered for a mortgage

modification unless Plaintiffs were late on their mortgage payments. Plaintiffs do

not allege that Bank of America promised to modify their mortgages or delay

foreclosure. Informing Plaintiffs of Bank of America’s policies regarding

mortgage modifications does not amount to a definitive promise to modify the loan

or a definitive promise not to foreclose on Plaintiffs’ properties. See Restatement

(Second) of Contracts § 2 cmt. e (1981).

      Moreover, the complaint failed to set forth any facts with regard to

ReconTrust Company, N.A. and Countrywide Home Loans, Inc. Plaintiffs make


                                           8
no specific allegations against these defendants. ReconTrust Company, N.A. and

Countrywide Home Loans, Inc. are merely named as defendants. As a result, any

claims for promissory estoppel against ReconTrust Company, N.A. and

Countrywide Home Loans, Inc. must fail. See Iqbal, 556 U.S. at 678.

      For these reasons we affirm the district court’s decision dismissing the

fourth amended complaint for failure to state a claim.

      The judgment of the district court is AFFIRMED.




                                         9
