                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 14 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JON CHARLES BEYER; SHELLEY                      No.    15-35586
BEYER,
                                                D.C. No. 3:10-cv-00523-MO
                Plaintiffs-Appellants,

 v.                                             MEMORANDUM*

BANK OF AMERICA, N.A.; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, Chief Judge, Presiding

                            Submitted August 9, 2017**

Before:      SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

      Jon Charles Beyer and Shelley Beyer appeal pro se from the district court’s

judgment dismissing their diversity action arising from foreclosure proceedings

and denying them leave to amend. We have jurisdiction pursuant to 28 U.S.C. §

1291. We review de novo a dismissal for lack of subject matter jurisdiction. Chen


      *
             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).
v. Allstate Ins. Co., 819 F.3d 1136, 1141 (9th Cir. 2016). We affirm.

      The district court properly dismissed as moot the Beyers’ claims arising

from appellees’ non-judicial foreclosure, because, as appellees concede, no

foreclosure proceedings are currently pending against the Beyers’ home. See Or.

Rev. Stat. § 86.782(2)(a) (nonjudicial foreclosure sale may be postponed for not

more than 180 days); Arizonans for Official English v. Arizona, 520 U.S. 43, 67

(1997) (to qualify as a case fit for federal court adjudication, an actual controversy

must be extant at all stages of review).

      Contrary to the Beyers’ contention, the Beyers do not state a claim for

damages in connection with the September 24, 2010 notice of default. See

Georgetown Realty, Inc. v. Home Ins. Co., 831 P.2d 7, 12 (Or. 1992) (en banc) (“If

the plaintiff’s claim is based solely on a breach of a provision in the contract,

which itself spells out the party’s obligation, then the remedy normally will be only

in contract . . . .”); MacLean & Assoc., Inc. v. Am. Guar. Life Ins. Co., 736 P.2d

586, 592 (Or. Ct. App. 1987) (“In order to recover damages for breach of contract,

the party seeking to recover must prove that it has substantially performed its own

obligations under the contract.” (citation and internal quotation marks omitted)).

      The district court did not abuse its discretion by denying the Beyers leave to

amend their first amended complaint because amendment would be futile. See

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)


                                           2                                    15-35586
(setting forth standard of review); Uptown Heights Assoc. Ltd. P’ship v. Seafirst

Corp., 891 P.2d 639, 647 (Or. 1995) (en banc) (elements of tortious interference

with economic relations); Webb v. Clark, 546 P.2d 1078, 1080 (Or. 1976) (en

banc) (elements of actionable fraud); Slover v. Or. State Bd. of Clinical Soc.

Workers, 927 P.2d 1098, 1101 (Or. Ct. App. 1996) (elements of breach of

contract).

      We do not consider claims raised for the first time on appeal. See Smith v.

Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      AFFIRMED.




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