NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID GREGORY McCLURE, No. 19-16499

Appellant, D.C. No. 3:18-cv-05241-VC

v.

MEMORANDUM*

STATE OF CALIFORNIA FRANCHISE

TAX BOARD,

Appellee.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Submitted August 5, 2020**

Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.

David Gregory McClure appeals pro se from the district court’s judgment

affirming the bankruptcy court’s summary judgment in his adversary proceeding.

We have jurisdiction under 28 U.S.C. § 158(d). We review de novo a district

court’s decision in an appeal from the bankruptcy court, and apply the same

* 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). standard of review the district court applied to the bankruptcy court’s decision.

Northbay Wellness Grp., Inc. v. Beyries, 789 F.3d 956, 959 (9th Cir. 2015). We

affirm.

The bankruptcy court properly granted summary judgment because McClure

failed to raise a genuine dispute of material fact as to whether his tax debt was

discharged by the bankruptcy court. See 11 U.S.C. § 523(a)(1)(B)(ii) (a discharge

of debts under 11 U.S.C. § 1328 does not include tax debts “filed or given after the

date on which such return, report, or notice was last due, under applicable law or

under any extension, and after two years before the date of the filing of the

petition”). Contrary to McClure’s contention, res judicata does not preclude the

Tax Board from collecting the debt. The Tax Board was not on notice that the debt

was going to be discharged. See In re Enewally, 368 F.3d 1165, 1173 (9th Cir.

2004) (“Although confirmed plans are res judicata to issues therein, the confirmed

plan has no preclusive effect on issues that . . . were not sufficiently evidenced in a

plan to provide adequate notice to the creditor.”).

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

in the opening brief, or arguments raised for the first time on appeal. See Padgett

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

AFFIRMED.

2 19-16499