Scott Latham v. Nvest Sv, Inc. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT LATHAM; VIRGINIA DEUTSCH, No. 20-16164
Plaintiffs-Appellants, D.C. No. 4:19-cv-02517-JSW
v.
MEMORANDUM*
NVEST SV, INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted November 18, 2021**
San Francisco, California
Before: PAEZ, WATFORD, and FRIEDLAND, Circuit Judges.
Plaintiffs Scott Latham and Virginia Deutsch appeal pro se from the district
court’s order dismissing their first amended complaint for lack of jurisdiction. We
affirm.
*
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).
Page 2 of 3
1. The district court correctly determined that plaintiffs lack statutory
standing to sue on their claims under federal law. Plaintiffs do not dispute that
standing to sue for trademark infringement or trade secret theft is reserved for
owners of the relevant intellectual property, and that NVest owned the trademarks
and trade secrets in question. They instead argue that their status as shareholders
made them joint owners of NVest’s intellectual property. However, it is “[a] basic
tenet of American corporate law” that individual shareholders do not own or have
legal title to the corporation’s assets. Dole Food Co. v. Patrickson, 538 U.S. 468,
474–75 (2003). Plaintiffs’ shareholder status does not confer the ownership
interest they assert, and they therefore lack standing to assert their trademark and
trade secret claims. Because plaintiffs do not have statutory standing to assert their
federal claims, dismissal of those claims was proper under Federal Rule of Civil
Procedure 12(b)(6). The district court also did not abuse its discretion in
dismissing without prejudice plaintiffs’ remaining state law claims, as plaintiffs
failed to establish diversity jurisdiction as to those claims.
2. Plaintiffs also argue that the district court abused its discretion by not
granting them leave to amend their complaint so that they could add derivative
trademark infringement and trade secret claims on behalf of NVest. As non-
attorney pro se plaintiffs, however, they are unable to pursue a representative claim
on behalf of a corporation. See In re Am. W. Airlines, 40 F.3d 1058, 1059 (9th Cir.
Page 3 of 3
1994). Any such amendment would therefore have been futile, and the district
court properly denied leave to amend. See Gonzalez v. Planned Parenthood of
L.A., 759 F.3d 1112, 1116 (9th Cir. 2014). To the extent plaintiffs request
additional relief, those arguments either were not raised in the district court or were
not distinctly argued in the opening brief, and they are therefore not properly
before us. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); see also
United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (unsupported arguments
made in passing are generally deemed waived).
AFFIRMED.