                                                                            FILED
                            NOT FOR PUBLICATION                             DEC 16 2015

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



                             FOR THE NINTH CIRCUIT


THOMAS MCKINNON and GERI                         No. 12-17156
MCKINNON,
                                                 D.C. No. 2:12-cv-00329-JCM-
               Plaintiffs - Appellants,          VCF

 v.
                                                 MEMORANDUM*
NDEX WEST, LLC; et al.,

               Defendants - Appellees.


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

                            Submitted December 9, 2015**

Before:        WALLACE, RAWLINSON, and IKUTA, Circuit Judges.

      Plaintiffs Thomas and Geri McKinnon appeal pro se from the district court’s

judgment dismissing their action alleging conspiracy and fraud claims relating to

the attempted foreclosure of their home. We have jurisdiction under 28 U.S.C.


          *
             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).
§ 1291. We review de novo a district court’s dismissal based on claim preclusion.

See Cabrera v. City of Huntington Park, 159 F.3d 374, 381 (9th Cir. 1998). We

affirm.

      The district court did not err by granting defendants’ motion to dismiss

without a hearing. 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.”);

D. Nev. L. R. 78-2 (“All motions may, in the Court’s discretion, be considered and

decided with or without a hearing.”); see also Novak v. United States, 795 F.3d

1012, 1023 (9th Cir. 2015) (due process does not require a court to hold a hearing

on a party’s motion to dismiss).

      The McKinnons have waived their arguments as to the substance of the

district court’s dismissal order by raising them for the first time in their reply brief.

See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]rguments not raised

by a party in its opening brief are deemed waived.”).

      AFFIRMED.




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