The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 10 2020
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
DAVID GREGORY McCLURE, No. 19-16499
Appellant, D.C. No. 3:18-cv-05241-VC
v.
MEMORANDUM*
STATE OF CALIFORNIA FRANCHISE
TAX BOARD,
Appellee.
Appeal from the United States District Court
for the Northern District of California
Vince Chhabria, District Judge, Presiding
Submitted August 5, 2020**
Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.
David Gregory McClure appeals pro se from the district court’s judgment
affirming the bankruptcy court’s summary judgment in his adversary proceeding.
We have jurisdiction under 28 U.S.C. § 158(d). We review de novo a district
court’s decision in an appeal from the bankruptcy court, and apply the same
* 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).
standard of review the district court applied to the bankruptcy court’s decision.
Northbay Wellness Grp., Inc. v. Beyries, 789 F.3d 956, 959 (9th Cir. 2015). We
affirm.
The bankruptcy court properly granted summary judgment because McClure
failed to raise a genuine dispute of material fact as to whether his tax debt was
discharged by the bankruptcy court. See 11 U.S.C. § 523(a)(1)(B)(ii) (a discharge
of debts under 11 U.S.C. § 1328 does not include tax debts “filed or given after the
date on which such return, report, or notice was last due, under applicable law or
under any extension, and after two years before the date of the filing of the
petition”). Contrary to McClure’s contention, res judicata does not preclude the
Tax Board from collecting the debt. The Tax Board was not on notice that the debt
was going to be discharged. See In re Enewally, 368 F.3d 1165, 1173 (9th Cir.
2004) (“Although confirmed plans are res judicata to issues therein, the confirmed
plan has no preclusive effect on issues that . . . were not sufficiently evidenced in a
plan to provide adequate notice to the creditor.”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments raised for the first time on appeal. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.