NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT H. O’CONNOR, 

Plaintiff-Appellant, 

 v. 

NATIONSTAR MORTGAGE, LLC, 

Defendant-Appellee.

No. 14-16961 

D.C. No. 3:13-cv-05874-NC 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Nathanael M. Cousins, Magistrate Judge, Presiding**

Submitted February 13, 2018***

Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.

This matter has been stayed since March 22, 2017 pending resolution of Ho 

v. ReconTrust Co., N.A., No. 10-56884, or further order of the court. We hereby 

lift the stay.

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The parties consented to proceed before a magistrate judge. See 28 

U.S.C. § 636(c).

*** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

FEB 22 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 14-16961 

Robert H. O’Connor appeals pro se from the district court’s judgment 

dismissing his action alleging federal and state law claims arising from foreclosure 

proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a 

district court’s dismissal for failure to state a claim under Federal Rule of Civil 

Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We 

affirm.

The district court properly dismissed O’Connor’s Fair Credit Reporting Act 

(“FCRA”) claims because O’Connor failed to allege facts sufficient to show that 

he reported a dispute of any information provided by Nationstar to a credit 

reporting agency (“CRA”). See Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 

1147, 1154 (9th Cir. 2009) (explaining that a creditor’s duties under the FCRA are

“triggered upon notice of a dispute from a CRA” rather than “directly from the 

consumer”).

The district court properly dismissed O’Connor’s Fair Debt Collection 

Practices Act (“FDCPA”) claims because O’Connor failed to allege facts sufficient 

to show that Nationstar engaged in debt collection activity. See Ho v. ReconTrust 

Co., NA, 858 F.3d 568, 572 (9th Cir. 2017) (“[A]ctions taken to facilitate a nonjudicial foreclosure . . . are not attempts to collect a ‘debt’ as that term is defined 
3 14-16961 

by the FDCPA.”).

The district court properly dismissed O’Connor’s state law claims as barred 

by the doctrine of res judicata because these claims involve the same primary right 

as those O’Connor litigated in a prior state court action. See Mycogen Corp. v. 

Monsanto Co., 51 P.3d 297, 306-07 (Cal. 2002) (explaining California’s primary 

right theory); see also Matsushita Electric Industrial Co., Ltd. v. Epstein, 516 U.S. 

367, 373 (1996) (“Federal courts may not employ their own rules in determining 

the effect of state judgments, but must accept the rules chosen by the State from 

which the judgment is taken.” (citation and internal quotation marks omitted)).

The district court did not abuse its discretion in granting Nationstar’s 

requests for judicial notice because the documents in question are matters of public 

record. See Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th 

Cir. 2012) (standard of review); Harris v. County of Orange, 682 F.3d 1126, 1132 

(9th Cir. 2012) (documents filed in federal or state court and other matters of 

public record are subject to judicial notice).

The district court did not abuse its discretion in denying O’Connor’s motion 

to file a second amended complaint because amendment would have been futile. 

See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (“A 
4 14-16961 

district court acts within its discretion to deny leave to amend when amendment 

would be futile . . . .”).

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).

AFFIRMED.