                                                                             FILED
                           NOT FOR PUBLICATION                                   APR 29 2014

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



                            FOR THE NINTH CIRCUIT

JACQUIE CHANDLER,                               No. 12-15992

              Plaintiff - Appellant,            D.C. No. 3:10-cv-00769-LRH-
                                                WGC,
  v.                                            District of Nevada,
                                                Reno
NDEX WEST, LLC, ONEWEST BANK,
FSB; INDYMAC BANK FSB;
STEWART TITLE GUARANTY CO.;                     MEMORANDUM*
LSI TITLE AGENCY, INC.; TICOR
TITLE OF NEVADA; STANLEY SILVA,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                            Submitted April 10, 2014**
                             San Francisco, California

Before: TALLMAN and CLIFTON, Circuit Judges, and DUFFY, 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 Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
      Appellant Jacquie Chandler (“Chandler”) appeals: (i) the district court’s

decision denying Chandler’s motion to remand the case to state court; (ii) the

district court’s decision granting Appellees’ motions to dismiss several of her state

law claims; and (iii) the district court’s decision granting summary judgment in

favor of Appellee NDeX West, LLC (“NDeX West”) on the remaining wrongful

foreclosure state law claim. This Court has jurisdiction under 28 U.S.C. § 1291,

and we affirm the district court’s judgment.

I.    The District Court’s Denial of Chandler’s Motion to Remand

      As a threshold matter, we have jurisdiction to consider Chandler’s appeal

from the district court’s denial of her motion to remand even though she failed to

identify that decision in the Notice of Appeal. In determining whether an appeal is

barred, this Court examines whether (i) Appellees had notice of the issue on appeal

and (ii) whether Appellees have had the opportunity to fully brief the issue. See

Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir. 2009).

Appellees had notice because Chandler discussed the motion to remand at length in

her Opening Brief and Appellees fully briefed the issue in response. Therefore,

Appellees have not been prejudiced by Chandler’s mistake and we consider her

appeal of the district court’s decision not to remand the case on the merits.




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      The district court properly asserted jurisdiction and concluded that Appellees

Ticor Title of Nevada (“Ticor”) and Stanley Silva (“Silva”) were fraudulently

joined. Although an action may be removed to federal court only where there is

complete diversity of citizenship, the district court ignores the presence of

fraudulently joined defendants for the purpose of establishing diversity. Hunter v.

Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009). Joinder is fraudulent if

the plaintiff fails to state a cause of action against a resident defendant, and the

failure is obvious according to the settled rules of the state. Id. (citations and

internal quotation marks omitted). In Nevada, a complaint must set forth sufficient

facts to establish all necessary elements of a claim for relief so that the adverse

party has adequate notice of the nature of the claim and the relief sought. Hay v.

Hay, 678 P.2d 672, 674 (Nev. 1984) (internal citations omitted). Ticor and Silva

were fraudulently joined because Chandler failed to allege the necessary elements

of any of the five state law causes of action against them. As such, the district

court properly denied Chandler’s motion to remand the case to state court.

Contrary to Chandler’s assertion, the district court was not required to remand the

case to state court. See, e.g., Alliance for Prop. Rights & Fiscal Responsibility v.

City of Idaho Falls, 742 F.3d 1100, 1103 (9th Cir. 2013) (federal courts may

interpret state law when state’s highest court has not directly addressed the issue).


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II.    The District Court’s Dismissal of Chandler’s Claims

       This Court will not consider matters on appeal that are not specifically and

distinctly argued in an appellant’s opening brief. Christian Legal Soc’y Chapter of

Univ. of Cal. v. Wu, 626 F.3d 483, 487 (9th Cir. 2010). While Chandler included

the district court’s decision dismissing several of her claims under Federal Rule of

Civil Procedure 12(b)(6) in her Notice of Appeal, the argument portion of

Chandler’s opening brief addresses only two issues: (i) whether the district court

properly declined to remand the case to state court, and (ii) whether summary

judgment in favor of NDeX West on the wrongful foreclosure claim was proper.

The district court’s dismissal of Chandler’s other claims under Federal Rule of

Civil Procedure 12(b)(6) was not discussed in her brief. Therefore, Chandler has

waived her appeal of the district court’s decision dismissing each of her claims

with the exception of the wrongful foreclosure claim against NDeX West that

survived the motion to dismiss. See Fed. R. App. P. 28(a)(8) (“[T]he argument . . .

must contain[] appellant’s contentions and the reasons for them, with citations to

the authorities and parts of the record on which the appellant relies . . .”).

III.   The District Court’s Decision on Summary Judgment

       The district court properly granted summary judgment in favor of NDeX

West on Chandler’s wrongful foreclosure claim. Summary judgment is proper


                                           -4-
when, while viewing the evidence in the light most favorable to the nonmoving

party, “there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56; see also Cnty. of Tuolumne v.

Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001). The party moving for

summary judgment has the burden of showing the absence of a genuine issue of

material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986). We

review a grant of summary judgment de novo. Szajer v. City of Los Angeles, 632

F.3d 607, 610 (9th Cir. 2011).

      An action for wrongful foreclosure in Nevada requires a plaintiff to

“establish that at the time the power of sale was exercised or the foreclosure

occurred, no breach of condition or failure of performance existed on the

mortgagor’s or trustor’s part which would have authorized the foreclosure or

exercise of the power of sale.” Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d

610, 623 (Nev. 1983). Chandler conceded that she defaulted on her mortgage

payments before the Notice of Default was recorded. There was no evidence that

Chandler attempted to remedy the default before the power of sale was exercised.

NDeX West asserted that it was acting as a lawful agent for the beneficiary of the

Deed of Trust when the Notice of Default was recorded and NDeX West provided

evidence in support of that assertion. See Nev. Rev. Stat. § 107.080 (2010). Even


                                         -5-
when viewing the evidence in the light most favorable to Chandler, there was no

genuine issue of material fact sufficient to survive summary judgment. Therefore,

we affirm the district court’s decision granting summary judgment on this claim.

      The judgment of the district court is AFFIRMED.




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