FILED

NOT FOR PUBLICATION

MAR 20 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM X. NIETZCHE, solely as No. 19-35876 trustee for KRME International Trust; JULIE A. METCALF KINNEY; D.C. No. 3:18-cv-01930-SI WILLIAM KINNEY, Jr.,

Plaintiffs-Appellants, MEMORANDUM*

v.

FREEDOM HOME MORTGAGE

CORPORATION; MORTGAGE

ELECTRONIC REGISTRATION

SYSTEMS, INC.; BENEFICIAL

OREGON, INC.; HSBC HOLDINGS,

PLC; REGIONAL TRUSTEE SERVICES

CORPORATION; MTGLQ INVESTORS,

LP; RUSHMORE LOAN

MANAGEMENT SERVICES, LLC; U.S.

BANK, N.A.; CLEAR RECON

CORPORATION; BARRISTERS

SUPPORT SERVICES; URBAN

HOUSING DEVELOPMENT, LLC;

FREEDOM MORTGAGE

CORPORATION; HSBC FINANCE

CORPORATION; HSBC HOME

EQUITY LOAN CORPORATION;

BENEFICIAL FINANCIAL; GOLDMAN

SACHS GROUP INC., As owner of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. MTGLQ; U.S. BANK TRUST, N.A., As trustee for securitized trust HSBC Trust HSBC Home Equity Loan Trust 2005-1 Trust; UHD HOLDINGS; RAIN CITY

CAPITAL OF OREGON, LLC; ROMAN

OZERUGA, In both personal and professional capacities; MARK K. PASSANANTE, In both personal and professional capacities; TERRANCE J. SLOMINSKI, In both personal and professional capacities; UNITED STATES

CORPORATION COMPANY; STATE

OF OREGON CORPORATION; DOES, 1

through 100 inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted March 17, 2023**

Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges

Plaintiffs appeal from the district court’s dismissal of their action arising out

of a nonjudicial foreclosure of real property in Portland, Oregon. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We review the dismissal de novo and

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 denial of leave to amend for an abuse of discretion. Cervantes v. Countrywide

Home Loans, Inc., 656 F.3d 1034, 1040-41 (9th Cir. 2011). We affirm.

The district court properly interpreted the documents attached to the

complaint and refused to accept speculative, conclusory allegations. See Daniels-

Hall v. Nat’l Educ. Ass’n., 629 F.3d 992, 998 (9th Cir. 2010) (holding that the

court is not “required to accept as true allegations that contradict exhibits attached

to the Complaint or matters properly subject to judicial notice, or allegations that

are merely conclusory, unwarranted deductions of fact, or unreasonable

inferences”). In any event, plaintiffs’ arguments regarding MERS1 have been

rejected by the Oregon Supreme Court. See Brandrup v. ReconTrust Co., N.A.,

303 P.3d 301, 318 (Or. 2013) (en banc) (holding that Oregon Revised Statutes §

86.735(1) “does not require recordation of ‘assignments’ of the trust deed by

operation of law that result from the transfer of the secured obligation”).

The district court did not abuse its discretion by dismissing without leave to

amend. The district court has “particularly broad” discretion to deny leave to

amend when a plaintiff has previously amended. Chodos v. W. Publ’g Co., 292

F.3d 992, 1003 (9th Cir. 2002) (internal quotation marks omitted). Moreover,

amendment would have been futile because plaintiffs’ claims fail as a matter of

1 MERS refers to Mortgage Electronic Registration Systems, Incorporated. 3 law. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (holding that

“[f]utility of amendment can, by itself, justify the denial of a motion for leave to

amend”). Plaintiffs have not offered specific facts that would state any claim

against any specific defendant.

The district court did not abuse its discretion by staying discovery and the

filing of motions until it ruled on the pending motions to dismiss. See Hunt v.

Cnty. of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (holding that the district has

“broad discretion to manage discovery and to control the course of litigation”)

(internal quotation marks omitted); Wood v. McEwen, 644 F.2d 797, 801 (9th Cir.

1981) (holding that the district court may stay discovery if there is a question about

whether the plaintiff can state a claim for relief).

There is no evidence of bias in this case. Bias arises “from an extrajudicial

source and not from conduct or rulings made during the course of the

proceedings.” Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th Cir. 1999) (internal

quotation marks omitted). Plaintiffs’ attempt to add the judge to the complaint

because they disagreed with court rulings did not require automatic recusal. See

United States v. Holland, 519 F.3d 909, 915 (9th Cir. 2008) (holding that recusal is

not automatic merely because a party threatens a judge).

4 We decline to consider both the arguments and claims waived by plaintiffs

in their opening brief and the issues raised for the first time on appeal. See Hayes

v. Idaho Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017) (holding that matters “not

specifically and distinctly raised and argued” in the opening brief have been

waived) (internal quotation marks omitted); Smith v. Marsh, 194 F.3d 1045, 1052

(9th Cir. 1999) (holding that we generally do not consider issues presented for the

first time on appeal).

Plaintiffs’ motion to certify questions to the Oregon Supreme Court (Dkt.

Entry No. 83) is DENIED.

AFFIRMED.

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