Johnny Pour v. Wells Fargo Merchant Services ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 28 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY POUR, No. 21-15528
Plaintiff-Appellant, D.C. No. 4:20-cv-02447-SBA
v.
MEMORANDUM*
WELLS FARGO MERCHANT SERVICES,
LLC; E. BARAN,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Submitted July 26, 2022**
San Francisco, California
Before: M. MURPHY,*** GRABER, and McKEOWN, Circuit Judges.
Johnny Pour appeals the district court’s order dismissing his Second
Amended Complaint (“SAC”) with prejudice and denying him leave to file his
*
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).
***
The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
Proposed Third Amended Complaint. We have jurisdiction under 28 U.S.C.
§ 1291 and we affirm.
We assume without deciding that Pour did not abandon his claims below and
thus we consider them on the merits. We nonetheless agree with the district
court’s alternative holding that the SAC failed to state a claim upon which relief
may be granted. As to Count 5, a two-year statute of limitations applies, Cal. Civ.
Proc. Code § 339(1), and the initial complaint was untimely. We therefore affirm
the dismissal of this claim. As to the remaining claims, we affirm for the reasons
given by the district court.
The district court did not abuse its discretion in denying Pour leave to amend
his complaint again. See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981,
1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted leave to
amend and has subsequently failed to add the requisite particularity to [his] claims,
‘[t]he district court’s discretion to deny leave to amend is particularly broad.’”
(third alteration in original) (quoting In re Read-Rite Corp., 335 F.3d 843, 845
(9th Cir. 2003)).
The district court did not abuse its discretion in failing to convert Wells
Fargo’s motion to dismiss sua sponte into a motion for summary judgment.
Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir.
2007). Even if Pour’s proposed amendment contained “matters outside the
2
pleadings” within the meaning of Fed. R. Civ. P. 12(d), the district court did not
rely on those allegations in deciding Wells Fargo’s motion. Jackson v. S. Cal. Gas
Co., 881 F.2d 638, 642 n.4 (9th Cir. 1989).
We do not consider Pour’s argument, raised for the first time in his reply
brief, that the district court violated his due process rights by dismissing his
complaint without a hearing. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)
(“[A]rguments not raised by a party in its opening brief are deemed waived.”).
AFFIRMED.
3