NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARLYS M. APPLETON, AKA Marlys 

Elavsky Appleton, 

Plaintiff-Appellant, 

 v. 

SHARYL A. BOHART; SANDRA L. 

HOHN, 

Defendants-Appellees.

No. 18-35339 

D.C. No. 2:17-cv-00327-TOR 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of Washington

Thomas O. Rice, Chief Judge, Presiding

Submitted February 19, 2019**

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

Marlys M. Appleton AKA Marlys Elavsky Appleton appeals pro se from the 

district court’s judgment dismissing her diversity action alleging various state law 

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

 

* 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 22 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-35339 

Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) 

(dismissal under Federal Rule of Civil Procedure 12(b)(1)); Lukovsky v. City & 

County of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008) (dismissal based on 

the applicable statute of limitations). We affirm.

The district court properly dismissed for lack of standing Appleton’s fraud, 

unjust enrichment, and “constructive trust” claims because Appleton failed to

allege facts sufficient to show that she had a legally protected interest in the 

property at issue. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) 

(setting forth requirements for Article III standing).

The district court properly dismissed as time-barred Appleton’s undue 

influence claim because Appleton failed to file her action within the applicable 

three-year statute of limitations. See Wash. Rev. Code § 4.16.080(4) (three-year 

limitations period for a fraud action begins to accrue upon “discovery by the 

aggrieved party of the facts constituting the fraud”); Adventist Adoption & Family 

Servs. v. Perry (In Interest of Perry), 641 P.2d 178, 180 (Wash. Ct. App. 1982) 

(undue influence is a species of fraud); see also Strong v. Clark, 352 P.2d 183, 184 

(Wash. 1960) (“Actual knowledge of the fraud will be inferred if the aggrieved 

party, by the exercise of due diligence, could have discovered it. . . . When the 
3 18-35339 

facts upon which the fraud is predicated are contained in a written instrument 

which is placed on the public record, there is constructive notice of its contents, 

and the statute of limitations begins to run at the date of the recording of the 

instrument.” (citations omitted)).

We reject as meritless Appleton’s contentions that the district court erred by 

considering opposing counsel’s declaration and exhibits, refusing to accept her 

allegations as true, and applying Washington law.

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.