                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 14 2013

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



                             FOR THE NINTH CIRCUIT


DAVID K. EVERSON; PATRICIA M.                    No. 11-17977
EVERSON,
                                                 D.C. No. 2:08-cv-01980-GMS
               Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

DAVID D. EVERSON, individually and
as President and Director of Mandalay
Homes, Inc.; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                     G. Murray Snow, District Judge, Presiding

                           Submitted February 11, 2013**

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Plaintiffs David K. Everson and Patricia M. Everson appeal pro se from the

district court’s summary judgment for defendants in plaintiffs’ diversity action


          *
             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).
alleging 13 causes of action arising from a dispute concerning horses. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo, Universal Health Servs.,

Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004), and we affirm.

      The district court properly granted summary judgment on plaintiffs’ breach

of contract claim because plaintiffs failed to raise a genuine dispute of material fact

as to whether the condition precedent to the settlement agreement had been

satisfied. See Yeazell v. Copins, 402 P.2d 541, 544 (Ariz. 1965) (no duty to

perform where a condition precedent has not been fulfilled).

      The district court properly granted summary judgment on plaintiffs’ abuse of

process claim because plaintiffs failed to raise a triable dispute as to whether

defendants brought their South Mountain Justice Court action primarily for an

improper purpose. See Nienstedt v. Wetzel, 651 P.2d 876, 881 (Ariz. Ct. App.

1982) (plaintiffs must prove “a willful act in the use of judicial process . . . for an

ulterior purpose not proper in the regular conduct of the proceedings”).

      The district court properly granted summary judgment on plaintiffs’ fraud

claims because plaintiffs failed to raise a triable dispute as to whether defendants’

allegedly fraudulent actions caused plaintiffs’ “consequent and proximate injury.”

Echols v. Beauty Built Homes, Inc., 647 P.2d 629, 631 (Ariz. 1982) (setting forth

elements of fraud).


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      The district court properly granted summary judgment on plaintiffs’

property tort claims because those claims are time-barred. See Ariz. Rev. Stat.

§ 12-542 (two-year statute of limitations); see also Doe v. Roe, 955 P.2d 951, 960

(Ariz. 1998) (en banc) (cause of action begins to accrue when “plaintiff knows or

with reasonable diligence should know the facts underlying the cause”).

       The district court properly granted summary judgment on plaintiffs’ civil

conspiracy claim because “there is no such thing as a civil action for conspiracy” in

Arizona. Tovrea Land & Cattle Co. v. Linsenmeyer, 412 P.2d 47, 63 (Ariz. 1966).

      The district court properly granted summary judgment on plaintiffs’ unjust

enrichment claim because plaintiffs failed to raise a triable dispute as to whether

the requisite elements were met. See Cmty. Guardian Bank v. Hamlin, 898 P.2d

1005, 1008 (Ariz. Ct. App. 1995) (setting forth elements for unjust enrichment).

      Contrary to plaintiffs’ contentions, the district court had jurisdiction to grant

summary judgment to the Estate of Louis Schaeffer. See S.E.C. v. Ross, 504 F.3d

1130, 1138-39 (9th Cir. 2007) (even “in the absence of proper service of process,”

a court has jurisdiction when “the defendant has consented to jurisdiction”).

      The district court did not abuse its discretion in declining to enter default

judgment against defendants because plaintiffs failed to show compliance with the




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requirements of Fed. R. Civ. P. 55(a). See Eitel v. McCool, 782 F.2d 1470, 1471-

72 (9th Cir. 1986) (setting forth standard of review and relevant factors).

      The district court did not abuse its discretion in denying plaintiffs’ motion to

strike defendants’ answer to the amended complaint. See Hambleton Bros. Lumber

Co. v. Balkin Enters. Inc., 397 F.3d 1217, 1224 n.4 (9th Cir. 2005) (setting forth

standard of review).

      The district court did not abuse its discretion in denying plaintiffs’ motion

for leave to file a second amended complaint because plaintiffs did not demonstrate

why the new facts they sought to plead were not available when they filed their

earlier complaints. See Chodos v. West Publ’g Co., Inc., 292 F.3d 992, 1003 (9th

Cir. 2002) (setting forth standard of review and relevant considerations).

      The district court did not abuse its discretion by denying plaintiffs’ motion

for reconsideration because plaintiffs failed to establish a basis warranting

reconsideration. See Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5

F.3d 1255, 1262–63 (9th Cir. 1993) (setting forth standard of review and grounds

for reconsideration).

      We do not address issues not properly raised before the district court. See

Novato Fire Prot. Dist. v. United States, 181 F.3d 1135, 1141 n.6 (9th Cir. 1999).

      AFFIRMED.


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