                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         OCT 5 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

CYNTHIA HORNER,                                  No. 12-16398

                Plaintiff-Appellant,             D.C. No. 2:12-cv-00269-JCM-
                                                 GWF
 v.

MORTGAGE ELECTRONIC                              MEMORANDUM*
REGISTRATION SYSTEMS, INC.; et al.,

                Defendants-Appellees.

                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                          Submitted September 26, 2017**

Before:      SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

      Cynthia Horner appeals pro se from the district court’s judgment dismissing

her diversity action alleging deceptive trade practices arising out of foreclosure-

related proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo a dismissal under Federal Rules of Civil Procedure 9(b) and 12(b)(6). Vess v.


      *
             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).
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). We affirm.

      The district court properly dismissed Horner’s Nevada Deceptive Trade

Practices Act (“DTPA”) claim because Horner did not allege facts sufficient to

show that defendants’ allegedly deceptive practices related to goods or services.

See Dowers v. Nationstar Mortg., LLC, 852 F.3d 964, 972 (9th Cir. 2017) (noting

that “a real estate loan is neither a good nor a service within the meaning of [the

DTPA]” and predicting that the Nevada Supreme Court will hold that the DTPA

does not regulate real estate loans); Orkin v. Taylor, 487 F.3d 734, 741 (9th Cir.

2007) (if the state’s highest court has not addressed an issue, federal courts must

predict how the state’s highest court would decide); see also Nev. Rev. Stat.

§§ 598.0915(1)-(16) (defining deceptive trade practices). Moreover, the district

court properly concluded that Horner failed to plead fraud with particularity as

required by Federal Rule of Civil Procedure 9(b). See Kearns v. Ford Motor Co.,

567 F.3d 1120, 1124-25 (9th Cir. 2009) (discussing Rule 9(b)’s pleading

requirement).

      The district court did not abuse its discretion in declining to grant Horner

leave to amend the DTPA claim because amendment would be futile. See Lopez v.

Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (setting forth standard of review and

explaining that leave to amend can be denied if amendment would be futile).




                                          2                                     12-16398
      We reject as without merit Horner’s contention that the district court abused

its discretion by deciding defendants’ motion to dismiss on the briefs and not

providing Horner an opportunity to conduct discovery. See Fed. R. Civ. P. 78(b)

(“By rule or order, the court may provide for submitting and determining motions

on briefs, without oral hearings.”); Rutman Wine Co. v. E. & J. Gallo Winery, 829

F.2d 729, 738 (9th Cir. 1987) (rejecting argument that plaintiff was entitled to

discovery prior to court ruling on motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6)).

      We do not consider matters not specifically and distinctly raised and argied

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.




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