NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY A. DICKERSON, 

Plaintiff-Appellant, 

 v. 

WELLS FARGO BANK, N.A.; et al., 

Defendants-Appellees.

No. 18-15261 

D.C. No. 3:16-cv-00375-RCJ-VPC 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Submitted February 19, 2019**

Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges. 

Attorney Jeffrey A. Dickerson appeals pro se from the district court’s 

summary judgment in his diversity action alleging state law claims related to his 

home mortgage loan. We have jurisdiction under 28 U.S.C. § 1291. We review de 

novo. Bourne Valley Court Tr. v. Wells Fargo Bank, NA, 832 F.3d 1154, 1157 

 

* 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).

FILED

FEB 25 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 

(9th Cir. 2016). We may affirm on any basis supported by the record. Johnson v. 

Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm in 

part, vacate in part, and remand.

Summary judgment on Dickerson’s breach of contract claim related to the 

foreclosure sale on the property was proper, because the foreclosure sale was 

rescinded and Dickerson failed to raise a genuine dispute of material fact as to 

whether he suffered damages. See Rivera v. Peri & Sons Farms, Inc., 735 F.3d 

892, 899 (9th Cir. 2013) (elements of a breach of contract claim under Nevada 

law). 

The district court properly denied Dickerson’s motion to remand because 

defendant McCarthy & Holthus, LLP was fraudulently joined to defeat diversity 

jurisdiction. See Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 

1206 (9th Cir. 2007) (exception to requirement for complete diversity exists where 

a non-diverse defendant is fraudulently joined); Ritchey v. Upjohn Drug Co., 139 

F.3d 1313, 1318 (9th Cir. 1998) (“If the plaintiff fails to state a cause of action 

against a resident defendant, and the failure is obvious according to the settled 

rules of the state, the joinder of the resident defendant is fraudulent.” (citation and 

internal quotation marks omitted)); Dezzani v. Kern & Assocs., Ltd., 412 P.3d 56, 

62 (Nev. 2018) (attorney cannot be liable under an agency theory if the attorney is 

providing legal services to a client). 
 3 

The district court did not abuse its discretion in setting aside the entry of 

default against defendant Wilmington Trust Company because the factors weigh 

against entry of default. See O’Connor v. Nevada, 27 F.3d 357, 364 (9th Cir. 

1994) (setting forth standard of review, explaining the factors considered when 

determining whether to set aside a default, and noting that “[t]he court’s discretion 

is especially broad where . . . it is entry of default that is being set aside, rather than 

a default judgment” (citation and internal quotation marks omitted)).

The district court granted summary judgment on Dickerson’s breach of 

contract claim related to defendant Wells Fargo Bank, NA’s failure to review him 

for a loan modification on the basis that Dickerson failed to raise a genuine dispute 

of material fact as to whether his application was complete. However, in his 

opposition to the motion for summary judgment, Dickerson submitted a verified 

declaration attesting that “[e]very document required with the [loan modification] 

application was submitted by Dickerson.” Because Wells Fargo has not provided 

any evidence to show how Dickerson’s application was deficient, other than a 

letter indicating that the application was incomplete, there is a genuine dispute of 

material facts as to whether Dickerson submitted a complete application. We 

vacate the judgment in part, and remand for further proceedings on this claim only. 

On remand, the district court should consider in the first instance alternate bases 

for summary judgment on this claim, and can consider supplemental filings. 
 4 

We do not consider arguments raised for the first time on appeal, or matters 

not specifically and distinctly raised and argued in the opening brief. See Padgett 

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

The parties shall bear their own costs on appeal. 

AFFIRMED in part; VACATED in part; and REMANDED.