Jim Theros v. First American Title Insurance Company, a California Corporation

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIM THEROS,
Plaintiff - Appellant,
v.
FIRST AMERICAN TITLE INSURANCE
COMPANY, a California Corporation;
WELLS FARGO BANK, NA, a.k.a.
Wachovia Mortgage, FSB, a division of
Wells Fargo Bank,
Defendants - Appellees.
No. 11-35198
D.C. No. 2:10-cv-02021-JCC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted May 14, 2013**
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Jim Theros appeals pro se from the district court’s summary judgment in his
diversity action arising from foreclosure proceedings. We have jurisdiction under
FILED
MAY 21 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-35198 2
28 U.S.C. § 1291. We review de novo. Pardi v. Kaiser Permanente Hosp., Inc.,
389 F.3d 840, 848 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment on Theros’s wrongful
foreclosure claim because Theros failed to introduce evidence sufficient to raise a
genuine dispute of material fact as to whether Wells Fargo Bank, NA held the
promissory note and deed of trust. See Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (“Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no genuine
issue for trial.” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion by denying Theros’s request
for additional discovery because Theros failed to satisfy the requirements of Fed.
R. Civ. P. 56(d). See Tatum v. City & County of San Francisco, 441 F.3d 1090,
1100 (9th Cir. 2006) (setting forth standard of review and requirements under
former Rule 56(f)).
Wells Fargo’s request for judicial notice, filed on September 26, 2011, is
denied.
Theros’s motion to file a supplemental reply brief is granted, and the Clerk
is directed to file the supplemental reply brief received on November 4, 2011.

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We do not consider on appeal materials that were not before the district
court. See Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003) (a party
generally may not add to or enlarge the record on appeal to include material that
was not before the district court).
AFFIRMED.

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