NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 30 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AL MCZEAL; et al., No. 12-55496

Plaintiffs-Appellants, D.C. No. 2:11-cv-07739-PA-PJW and

ARACELI GARCIA; et al., individually, MEMORANDUM* and on behalf of all other similarly situated individuals,

Plaintiffs, v.

JPMORGAN CHASE BANK, N.A.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted May 25, 2018**

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.

* 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). Al McZeal and other plaintiffs appeal pro se from the district court’s

dismissal of their action asserting claims based on alleged abuses in the mortgage

industry. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Appellant’s assertion that Judge Anderson was required sua sponte to recuse

himself appears for the first time on appeal, rendering it subject to plain error

review. See United States v. Sierra Pac. Indus., Inc., 862 F.3d 1157, 1173–74 (9th

Cir. 2017) petition for cert. filed (U.S. Feb. 14, 2018) (No. 17-1153). Even if we

assume that all the distant information the appellants now marshal in support of

their tardy claim is (1) properly before us, and (2) relevant, none of it is sufficient

to demonstrate error, much less plain error.

The district court properly struck the complaint’s class allegations because a

plaintiff proceeding pro se may not pursue claims on behalf of others. See Simon

v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008). The district court did not

abuse its discretion in denying plaintiffs an extension of time to secure class

counsel, nor in failing to appoint interim class counsel. See United Steelworkers of

Am. v. Ret. Income Plan for Hourly-Rated Emps. of ASARCO, Inc., 512 F.3d 555,

563 (9th Cir. 2008).

The district court properly dismissed all plaintiffs except Al McZeal on the

basis of misjoinder because plaintiffs’ claims related to foreclosures on different

properties by different banks, and thus did not arise from the same transaction or

2 occurrence. See Fed. R. Civ. P. 20(a)(1) and 21; Coleman v. Quaker Oats Co., 232

F.3d 1271, 1296 (9th Cir. 2000).

We review de novo the district court’s dismissal for failure to state a claim

under Fed. R. Civ. P. 12(b)(6). Eclectic Props. East, LLC v. Marcus & Millichap

Co., 751 F.3d 990, 995 (9th Cir. 2014).

The district court did not err in dismissing McZeal’s federal claims. The

complaint’s generalized allegations of a mortgage industry conspiracy to defraud

were insufficient to state a civil RICO claim under 18 U.S.C. § 1962(c) and (d).

See United Bros. of Carpenters & Joiners of Am. v. Bldg. & Constr. Trades Dep’t,

AFL-CIO, 770 F.3d 834, 837 (9th Cir. 2014) (discussing that the elements of civil

RICO claim are: “(1) conduct (2) of an enterprise (3) through a pattern (4) of

racketeering activity . . . (5) causing injury to plaintiff’s business or property.”);

Sanford v. MemberWorks, Inc., 625 F.3d 550, 557–58 (9th Cir. 2010) (holding that

pursuant to Fed. R. Civ. P. 9(b), RICO fraud allegations must be stated with

particularity).

The district court correctly concluded that McZeal’s Truth in Lending Act

claim for rescission was barred by his allegations that his two properties had been

foreclosed upon. See Meyer v. Ameriquest Mortg. Co., 342 F.3d 899 (9th Cir.

2003) (holding that right to rescind ends with sale of property). McZeal failed to

state a TILA claim for damages because he did not allege detrimental reliance on

3 defendants’ loan disclosures and also failed to allege which disclosures were

omitted by which defendants. See Gold Country Lenders v. Smith (In re Smith),

289 F.3d 1155, 1157 (9th Cir. 2002) (per curiam) (holding that TILA damages

claim requires proof of detrimental reliance).

McZeal failed to state a claim under the Fair Debt Collection Practices Act

because the defendants were not debt collectors within the meaning of the FDCPA.

See Ho v. ReconTrust Co., 858 F.3d 568, 571–72 (9th Cir.), cert. denied, 138 S. Ct.

504 (2017). McZeal failed to state a claim for securities fraud because he did not

plead allegations of fraud with particularity. See Webb v. SolarCity Corp., 884

F.3d 844, 851 (9th Cir. 2018). McZeal failed to state a claim for violation of his

Fourth and Fifth Amendment rights because the defendants are private entities, and

their actions are not fairly attributable to the government. See Roberts v. AT&T

Mobility LLC, 877 F.3d 833, 837 (9th Cir. 2017), petition for cert. filed (U.S. Mar.

9, 2018) (No. 17-1287). McZeal failed to state a claim under 42 U.S.C. § 1981

because he failed to allege intentional discrimination on the basis of race. See

Lindsey v. SLT L.A., LLC, 447 F.3d 1138, 1145 (9th Cir. 2006) (setting forth

elements of prima facie case). McZeal failed to state a claim under 42 U.S.C. §

1983 because he failed to allege state action. See Naffe v. Frey, 789 F.3d 1030,

1035–36 (9th Cir. 2015) (setting forth elements of claim under § 1983). McZeal

failed to state a claim under 42 U.S.C. § 1985(3) because he failed sufficiently to

4 allege a conspiracy. See Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005)

(setting forth elements of claim under § 1985(3)). McZeal failed to state a claim

under the Fair Housing Act, 42 U.S.C. § 3605 (prohibiting discrimination in

residential real estate-related transactions), because he alleged only generally that

the defendants engaged in “discriminatory housing practices with respect to

interest rates, required disclosures, and general terms and conditions offered,” and

did not specifically allege which defendants committed which discriminatory

practices against him personally. See Avenue 6E Invs., LLC v. City of Yuma, 818

F.3d 493, 502–03 (9th Cir. 2016) (explaining that FHA prohibits disparate

treatment because of race, religion, gender, or other protected characteristic).

McZeal also failed to state a claim under the Real Estate Settlement Procedures

Act. See 12 U.S.C. § 2614 (statute of limitations); Merritt v. Countrywide Fin.

Corp., 759 F.3d 1023, 1036 (9th Cir. 2014).

McZeal argues that the complaint could have been amended to state a claim,

but he does not explain how. Given the extensive deficiencies in the complaint,

the district court did not abuse its discretion in dismissing McZeal’s federal claims

with prejudice, rather than granting leave to amend. See Rentmeester v. Nike, Inc.,

883 F.3d 1111, 1125 (9th Cir. 2018) (holding that district court did not abuse its

discretion in dismissing suit with prejudice when amending complaint would have

been futile).

5 The district court did not abuse its discretion in failing to allow oral

argument on motions, see Carpinteria Valley Farms Ltd. v. Cty. of Santa Barbara,

344 F.3d 822, 832 n.6 (9th Cir. 2003), nor in declining to find two defendants in

default, see Dreith v. Nu Image, Inc., 648 F.3d 779, 786 (9th Cir. 2011).

The motion for judicial notice, Docket Entry No. 66, is denied as

unnecessary.

Costs are awarded to Appellees. See Fed. R. App. P. 39(a).

AFFIRMED.

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