DOUGLAS LUTHER MYSER v. SPOKANE COUNTY (2016)

MEMORANDUM*

Douglas Luther Myser appeals pro se from the district court's judgment dismissing his action alleging fraud on the court. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the district court's dismissal of an independent action to set aside a prior judgment for fraud on the court. Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 780 (9th Cir. 2003). We affirm.

The district court did not abuse its discretion by dismissing Myser's action for failure to state a claim because the alleged perjury by witnesses and mischaracterization of the relevant legal standard by Spokane's attorneys do not amount to fraud on the court. See id. (explaining that “[f]raud on the court requires a grave miscarriage of justice” and “perjury by a party or witness, does not, by itself, amount to fraud on the court” (citation and internal quotation marks omitted)); see also United States v. Estate of Stonehill, 660 F.3d 415, 444 (9th Cir. 2011) (“Most fraud on the court cases involve a scheme by one party to hide a key fact from the court and the opposing party.”).

The district court did not abuse its discretion by dismissing Myser's amended complaint without leave to amend because further amendment would be futile. See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (setting forth standard of review and stating that district court may deny leave to amend when plaintiff has failed to cure deficiencies by previous amendments and further 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).

All pending motions and requests are denied.

AFFIRMED.