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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DUNCAN K. ROBERTSON,

 Plaintiff-Appellant,

v.

GMAC MORTGAGE, LLC, et al.,

 Defendants-Appellees.

No. 14-35672

D.C. No. 2:12-cv-02017-MJP

MEMORANDUM

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, Chief District Judge, Presiding

Submitted August 16, 2017



Seattle, Washington

Before: HAWKINS and TALLMAN, Circuit Judges, and LEFKOW, ** Senior 

District Judge.

 

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

except as provided by 9th Cir. R. 36-3.

 The panel unanimously finds this case suitable for decision without oral 

argument. See Fed. R. App. P. 34(a)(2)(C).

* The Honorable Joan H. Lefkow, Senior United States District Judge for 

the Northern District of Illinois, sitting by designation.

FILED

AUG 21 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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This case comes back following our remand to the district court. Duncan K. 

Robertson owns real property subject to a deed of trust (“the Nicholls DOT”). The 

obligor on the Nicholls DOT defaulted, triggering a non-judicial foreclosure by the 

trustee on behalf of the beneficiary of the Nicholls DOT. Over a period of nearly 

two years, Robertson successfully resisted several scheduled trustee sales while 

endeavoring to identify the correct trustee and beneficiary of the Nicholls DOT

(which had been transferred more than once), as he intended to pay off the 

deficiency and improve the property for sale and profit. Ultimately, the beneficial 

interest in the Nicholls DOT was purportedly transferred to Residential Funding 

Real Estate Holdings, LLC (“RFREH”), and the trustee, LSI Title Agency, Inc. 

(“LSI”),

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issued a notice of foreclosure sale on RFREH’s behalf. That sale did not 

occur and, as far as the record reflects, neither has a resolution of the payoff 

amount been reached nor the sale gone forward. Robertson alleges that the cloud 

on his title has prevented him from improving and selling the property.

Robertson filed suit to quiet title to the property in Washington state superior 

court, naming as defendants LSI, Bank One, N.A. and its successor in interest J.P 

 

1 Since March 2014, LSI has been doing business as ServiceLink Title Agency, 

Inc. For simplicity, we will refer to LSI by its name at the time this suit was filed 

in 2012.
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Morgan Chase Bank, N.A. (collectively, “Chase”), Bank of New York Mellon 

Trust Co., N.A. (“BNY”), First American Title Insurance Co., and several other 

entities that claimed some interest in the Nicholls DOT,2either as a beneficiary of 

the promissory note or as trustee. Robertson alleged violations of state law, 

including the Washington Deed of Trust Act (“DTA”) and Consumer Protection 

Act (“CPA”), and sought declaratory judgment to void the Nicholls DOT, as well 

as injunctive relief and damages. The district court either dismissed or entered 

summary judgment in favor of the defendants on almost all of Robertson’s claims.

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The district court entered final judgment pursuant to Federal Rule of Civil 

Procedure 54(b), and Robertson appealed.

After oral argument, we remanded to the district court to determine whether 

it had jurisdiction based on diversity of citizenship. The district court so concluded

and we now can determine the merits of Robertson’s appeal. Robertson continues 

to challenge the district court’s jurisdiction as to LSI and BNY and its dismissal of 

 

2 Those entities included RFREH, GMAC Mortgage, LLC, Executive 

Trustee Services, LLC, Residential Funding Corp., Residential Funding Co., LLC,

and Homecomings Financial, LLC (“the GMAC defendants”).

3 Robertson’s remaining claims against the GMAC defendants were stayed 

under 11 U.S.C. § 362(a)(1) pending those defendants’ chapter 11 bankruptcy 

proceeding in the Southern District of New York. Those claims are not before us.
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his DTA and CPA claims. We have jurisdiction under 28 U.S.C. § 1291. We 

affirm.

1. We review de novo a district court’s order denying a motion to 

remand to state court for lack of removal jurisdiction. Hunter v. Philip Morris 

USA, 582 F.3d 1039, 1042 (9th Cir. 2009). A district court’s factual findings 

regarding domicile or citizenship, however, are reviewed for clear error. See Rea v. 

Michaels Stores Inc., 742 F.3d 1234, 1237 (9th Cir. 2014) (per curiam) (citing Fed. 

R. Civ. P. 52(a)(6)). Clear error requires a “definite and firm conviction that a 

mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 

573 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))

(internal quotation marks omitted).

Robertson contends that LSI was a home-forum defendant, defeating 

removal under 28 U.S.C. § 1441(b)(2). Robertson relies on LSI’s representation on 

its regulatory filings with Washington’s Office of the Insurance Commissioner 

(“OIC”) that its “business address” was in Bellevue, Washington. After an 

evidentiary hearing, the district court rejected this argument. First, the relevant 

Washington regulatory code, which requires title insurance agents that wish to be 

treated as resident agents to maintain a lawfully-established place of business in 

the state, says nothing regarding such an agent’s principal place of business. See 
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Wash. Rev. Code § 48.17.090(4)(b). Second, an OIC compliance officer testified 

that her use of the term “principal place of business” in her declaration submitted 

by Robertson simply referred to the licensee’s primary physical address within the 

state of Washington, not to its national headquarters.

The district court determined that LSI’s principal place of business at the 

time of removal was California, based on evidence provided by LSI that showed 

that its key executives, including its president, were located in California at the 

time of removal. The court found that the corporation’s “nerve center” was in 

California, making it a citizen of California. See Hertz Corp. v. Friend, 559 U.S. 

77, 80–81 (2010) (defining a corporation’s principal place of business as its “nerve 

center,” the place from which the corporation’s high level officers direct, control, 

and coordinate the corporation’s activities). The district court’s finding that LSI 

was not a home-forum defendant was not clear error; thus, it committed no error in 

denying Robertson’s motions to remand to the state superior court.

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4 Robertson’s argument that the district court lacked jurisdiction under 28 

U.S.C. § 1359 because the defendants-appellees colluded to deceive the court 

regarding BNY’s citizenship also fails. Even if BNY were a citizen of Florida, as 

defendants initially pleaded in the notice of removal, and not California, as 

defendants asserted during remand proceedings, complete diversity would still 

exist relative to Robertson, a citizen of Oregon. Robertson thus cannot show that 

defendants took any action “to invoke the jurisdiction” of the district court. See 28 

U.S.C. § 1359. Also unavailing is Robertson’s argument that BNY should be 
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2. We review de novo a district court’s orders dismissing for failure to 

state a claim and granting summary judgment. Doe v. Abbott Labs., 571 F.3d 930, 

933 (9th Cir. 2009). We may affirm dismissal on any basis supported by the 

record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 

2008).

Robertson contends that the district court erred in dismissing his declaratory 

judgment action for violations of the DTA against Chase and BNY based on lack 

of standing to sue to enforce its protections. Because we find that the district court 

should have dismissed this claim for lack of a justiciable case or controversy, 

rather than lack of statutory standing, we do not reach whether Robertson has 

standing under the DTA.5If no justiciable controversy exists, then the court lacks 

 

estopped from denying the “jurisdictional fact” that it is a citizen of Florida as it 

originally contended. A party’s citizenship cannot be stipulated to or admitted by a 

party if it is not accurate. Cf. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 

377 n.21 (1978).

5 Although the district court applied the Washington Uniform Declaratory 

Judgment Act (“UDJA”), Wash. Rev. Code § 7.24.010, in the proceedings below, 

we apply the federal Declaratory Judgment Act, 28 U.S.C. § 2201, when sitting in 

diversity. Golden Eagle Ins. Co. v. Travelers Cos., 103 F.3d 750, 753 (9th Cir. 

1996), overruled on other grounds by Gov’t Emps. Ins. Co. v. Dizol, 133 F.3d 1220 

(9th Cir. 1998). Analyzing Robertson’s claim under the UDJA, however, would 

not alter our conclusion that he has not alleged a justiciable case or controversy.
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subject-matter jurisdiction and must dismiss under Federal Rule of Civil Procedure 

12(b)(1).6

Robertson’s complaint does not allege a controversy between himself and 

either Chase or BNY. The DTA serves to protect interested parties from wrongful 

non-judicial foreclosure sales. Frias v. Asset Foreclosure Servs., Inc., 334 P.3d 

529, 537 (Wash. 2014). If a foreclosure sale has not yet occurred, the DTA allows 

interested parties to restrain the sale, Wash. Rev. Code § 61.24.130(1), or pay the 

trustee the amount due under the deed of trust, Wash. Rev. Code § 61.24.090(1), 

but the DTA does not create a damages remedy, Frias, 334 P.3d at 533. Here, 

Robertson has not alleged that Chase and BNY continue to claim an interest in the 

property encumbered by the Nicholls DOT. Neither Chase nor BNY has threatened 

Robertson, explicitly or implicitly, to foreclose on the property. Therefore, under 

the DTA, Robertson and Chase and BNY do not have “adverse legal interests” to 

warrant rendering declaratory relief. See Shell Gulf of Mex. Inc. v. Ctr. for 

Biological Diversity, Inc., 771 F.3d 632, 635 (9th Cir. 2014). Because no 

 

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In his opening brief Robertson argues in passing that such a dismissal of 

his declaratory judgment claim requires that the entire case be remanded pursuant 

28 U.S.C. § 1447(c). That is incorrect. See Lee v. Am. Nat’l Ins. Co., 260 F.3d 997, 

1006 (9th Cir. 2001) (citing Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 392 

(1998)) (holding that remand under § 1447(c) is only required “if subject-matter 

jurisdiction is lacking over the entire case, and not over just some of the plaintiff’s 

claims”).
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justiciable case or controversy between Robertson, Chase, and BNY exists, we 

dismiss Robertson’s claims under the DTA for lack of subject matter jurisdiction.

3. To prove a claim for violation of the CPA, a plaintiff must establish 

an “(1) unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) 

public interest impact; (4) injury to plaintiff in his or her business or property; (5) 

[and] causation.” Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 

719 P.2d 531, 533 (Wash. 1986). The district court found that Robertson failed to 

establish the first, third, fourth, and fifth elements as to all defendants-appellees.

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The injuries Robertson asserts in his Complaint are clouding title to his 

property, which is causing its value to diminish, and loss of use, including lost 

revenue from sale, rental, or development.

8 Robertson has not explained, however, 

how LSI’s allegedly deceptive practices in particular caused his injuries. And, as 

the district court noted, the cloud on his title and his limited ability to sell, rent, or 

 

7 Because Robertson did not “distinctly raise[] and argue[]” dismissal of his 

CPA claims against defendants other than LSI in his opening brief, we consider 

these arguments waived. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 

2009) (per curiam).

8 Robertson additionally lists as injuries pecuniary losses from liquidating 

assets and taking loans in anticipation of paying off the Nicholls DOT as well as

loss of appreciation value of the liquidated securities, but these injuries are 

explicitly attributed to the actions of defendants that are not participating in this 

appeal.
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develop the property resulted from his purchasing the property subject to a firstposition deed of trust. Thus, these injuries cannot reasonably be attributed to LSI.

See Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 170 P.3d 10, 

21 (Wash. 2007) (holding that, to satisfy the causation element, a CPA plaintiff 

must “establish that but for the defendant’s unfair or deceptive act or practice the 

plaintiff’s injury would not have occurred”).

4. We review for abuse of discretion denial of leave to amend a 

complaint. Lacano Invs., LLC v. Balash, 765 F.3d 1068, 1071 (9th Cir. 2014). A 

district court does not abuse its discretion by denying leave where the proposed 

amendment would be futile. See id. at 1076.

The district court denied the motion to amend because it found that 

Robertson’s proposed amendments, which included correcting typos, adding 

defendants, supplementing his emotional distress allegations, and adding judicial 

notice of public records and court cases, would not avoid dismissal of the claims

against LSI. The district court did not abuse its discretion.

AFFIRMED. Each party shall bear its own costs of this appeal.