                                                                            FILED
                           NOT FOR PUBLICATION                               FEB 17 2015

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



                            FOR THE NINTH CIRCUIT


DENISE SCHMIDT,                                  No. 13-55579

              Plaintiff - Appellant,             D.C. No. 3:12-cv-02126-LAB-
                                                 KSC
  v.

PNC BANK, NA and DOES, 1 through                 MEMORANDUM*
10, inclusive,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                           Submitted February 13, 2015**
                               Pasadena, California

Before: CALLAHAN, WATFORD, and OWENS, Circuit Judges.

       Denise K. Schmidt (Schmidt) appeals the dismissal of her suit against PNC

Bank, NA (PNC). In February 2006, Schmidt obtained a loan for $650,000.00. In

2008, she defaulted on her mortgage payments, and foreclosure proceedings

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
ensued. Schmidt initially filed an action in the Superior Court of California for

declaratory relief from PNC’s attempts to collect payments and foreclose on her

residence, but she dismissed her action. She then filed this action in the United

States District Court for the Southern District of California against PNC alleging

causes of action for declaratory relief, negligence, quasi contract, violation of 15

U.S.C. § 1692 et seq. of the Fair Debt Collection Practices Act, violation of

California Business and Professions Code § 17200 et seq., and an accounting. The

district court granted PNC’s Rule 12(b)(6) motion to dismiss and denied Schmidt

leave to amend. Schmidt now appeals, and we affirm, as Schmidt has failed to

show that she has, or can, state a cognizable claim against PNC.

      1. In general, we only review “issues [that] are argued specifically and

distinctly in a party’s opening brief,” and that are raised properly under Federal

Rule of Appellate Procedure 28. Christian Legal Soc’y Chapter of Univ. of Cal. v.

Wu, 626 F.3d 483, 485 (9th Cir. 2010) (alteration in original) (internal quotations

marks omitted). We have held that “failure to comply with Rule 28, by itself, is

sufficient ground to justify dismissal of an appeal.” Id. (internal quotation marks

omitted). In this case, Schmidt’s appellate brief was so conclusory that it failed to

articulate any explanation as to why the district court erred or abused its discretion

in dismissing her case. Since courts need not “manufacture arguments for an


                                           2
appellant,” Schmidt waived any possible claims that could have been raised upon

appeal. Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003)

(internal quotation marks omitted).

      2. Nonetheless, addressing the merits of Schmidt’s appeal, the district court

did not err in dismissing the complaint because Schmidt’s one-page opposition to

the motion to dismiss failed to address any of the motion’s arguments on the

merits, but simply referred the court to her previous filings and arguments.

Schmidt never addressed the merits of her causes of action nor did she state how

her proposed amended complaint would remedy any issues raised in PNC’s

motion. Furthermore, a review of the filings in this case—including Schmidt’s

brief to this court—shows that Schmidt has failed to show that she has stated, or

can state, a cognizable claim against PNC. Accordingly, the District Court did not

err in dismissing Schmidt’s action.

      3. Federal Rule of Civil Procedure 15(a) provides that “leave to amend shall

be freely given when justice so requires.” Carvalho v. Equifax Info. Servs., LLC,

629 F.3d 876, 892 (9th Cir. 2010). While “this policy is . . . applied with extreme

liberality,” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th

Cir. 1990), leave to amend is not automatic. A party may only amend its complaint

once as a matter of course within the time limits set forth in Rule 15, and after that


                                           3
time period lapses, a party may amend its complaint “only with the opposing

party’s written consent or the court’s leave.” Fed. R. Civ. Proc. 15(a)(2). Courts

may deny leave to amend at their discretion due to “undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue

of allowance of the amendment, futility of amendment, etc.” Foman v. Davis, 371

U.S. 178, 182 (1962).

      Schmidt sought to amend her complaint outside of the time frame for

amending as a matter of course and did not obtain written consent from PNC. The

District Court noted that the action appeared to be a frivolous and desperate

attempt to avoid foreclosure. Nothing in Schmidt’s filings with the Ninth Circuit

counters the district court’s reasonable determination that Schmidt brought her

federal complaint in bad faith. Schmidt’s filings in this court do not set forth any

proposed amendments that would not be futile. The district court did not abuse its

discretion in denying leave to amend.

      The district court’s dismissal of Schmidt’s action without leave to amend is

AFFIRMED.




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