Mark McCune v. Josephine Salmon

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 24 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARK WADE McCUNE, No. 23-15294 Appellant, D.C. No. 4:22-cv-00323-JCH v. MEMORANDUM* JOSEPHINE E. SALMON; ALDRIDGE PITE LLP; WELLS FARGO BANK; WELLS FARGO BANK, N.A., as Indenture Trustee for GMACM Home Equity Loan Trust 2004-HE1; DIANNE C. KERNS, Appellees. Appeal from the United States District Court for the District of Arizona John Charles Hinderaker, District Judge, Presiding Submitted March 17, 2025** Before: CANBY, R. NELSON, and FORREST, Circuit Judges. Chapter 13 debtor Mark Wade McCune appeals pro se from the district court’s judgment affirming the bankruptcy court order dismissing his adversary * 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). McCune’s request for oral argument, set forth in the opening brief, is denied. proceeding. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo the district court’s decision on appeal from the bankruptcy court and apply the same standards of review applied by the district court. In re Thorpe Insulation Co., 677 F.3d 869, 879 (9th Cir. 2012). We affirm. The bankruptcy court properly dismissed McCune’s adversary proceeding because McCune failed to allege facts sufficient to state any plausible claims. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face” and conclusory allegations are not entitled to be assumed true (citation and internal quotation marks omitted)); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (courts are not required to accept as true allegations that “contradict matters properly subject to judicial notice or by exhibit”); see also Kearns v. Ford Motor Co., 567 F.3d 1120, 1124-25 (9th Cir. 2009) (discussing heightened pleading standard under Rule 9(b), which applies to state law claims alleging fraudulent conduct). We reject as unsupported by the record McCune’s contention that the bankruptcy judge was biased against him. We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). 2 23-15294 All pending requests are denied. AFFIRMED. 3 23-15294