Siegler v. Sorrento Therapeutics, Inc. ( 2021 )

Case: 20-1435 Document: 62 Page: 1 Filed: 07/20/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SARA ELIZABETH SIEGLER, SARA ELIZABETH
SIEGLER,
Plaintiffs-Appellants
v.
SORRENTO THERAPEUTICS, INC., TNK
THERAPEUTICS, INC., BDL PRODUCTS, INC.,
CARGENIX HOLDINGS LLC, PROSPECT
CHARTERCARE ROGER WILLIAMS MEDICAL
CENTER LLC, HENRY JI, STEVEN C. KATZ,
TUFTS MEDICAL CENTER,
Defendants-Appellees
RICHARD PAUL JUNGHANS,
Defendant
______________________
2020-1435
______________________
Appeal from the United States District Court for the
Southern District of California in No. 3:18-cv-01681-GPC-
MSB, Judge Gonzalo P. Curiel.
______________________
Decided: July 20, 2021
______________________
Case: 20-1435 Document: 62 Page: 2 Filed: 07/20/2021
2 SIEGLER v. SORRENTO THERAPEUTICS, INC.
SARA ELIZABETH SIEGLER, Bedford, OH, pro se.
PETER STONE, Paul Hastings LLP, Palo Alto, CA, for
defendants-appellees Sorrento Therapeutics, Inc., TNK
Therapeutics, Inc., BDL Products, Inc., Cargenix Holdings
LLC, Henry Ji. Also represented by KEVIN JAMES WHITE.
CHARLES M. MCMAHON, McDermott Will & Emery
LLP, Chicago, IL, for defendants-appellees Prospect Char-
tercare Roger Williams Medical Center LLC, Steven C.
Katz. Also represented by MICHAEL P. CHU; JIAXIAO
ZHANG, Irvine, CA.
DAVID ALAN WOLLIN, Hinckley, Allen & Snyder LLP,
Providence, RI, for defendant-appellee Tufts Medical Cen-
ter.
______________________
Before PROST, SCHALL, and O’MALLEY, Circuit Judges.
O’MALLEY, Circuit Judge.
Sara Elizabeth Siegler—and, purportedly, Sara Eliza-
beth Siegler (“SES”), a sole proprietorship that she owns
and operates—appeals several decisions of the United
States District Court for the Southern District of Califor-
nia. These include the denial of her motion for default
judgment, the dismissals of her First and Second Amended
Complaints, and the denials of her motions for reconsider-
ation and motion for leave to amend. See Siegler v. Sor-
rento Therapeutics, Inc. (Siegler I), No. 3:18-cv-01681-GPC-
NLS, 2018 WL 9516052 (S.D. Cal. Oct. 31, 2018); Siegler v.
Sorrento Therapeutics, Inc. (Siegler II), No. 3:18-cv-01681-
GPC-NLS, 2019 WL 581719 (S.D. Cal. Feb. 13, 2019); Sieg-
ler v. Sorrento Therapeutics, Inc. (Siegler III), No. 3:18-cv-
01681-GPC-MSB, 2019 WL 1574321 (S.D. Cal. Apr. 11,
2019); Siegler v. Sorrento Therapeutics, Inc. (Siegler IV),
No. 3:18-cv-01681-GPC-NLS, 2019 WL 2549248 (S.D. Cal.
June 20, 2019); Siegler v. Sorrento Therapeutics, Inc.
Case: 20-1435 Document: 62 Page: 3 Filed: 07/20/2021
SIEGLER v. SORRENTO THERAPEUTICS, INC. 3
(Siegler V), No. 3:18-cv-01681-GPC-NLS, 2019 WL
3532294 (S.D. Cal. Aug. 2, 2019); Siegler v. Sorrento Ther-
apeutics, Inc. (Siegler VI), No. 3:18-cv-01681-GPC-MSB,
2019 WL 6877594 (S.D. Cal. Dec. 17, 2019). Because we
are unpersuaded by Siegler’s arguments, we affirm.
I. BACKGROUND
A. Factual Background
Given the procedural posture of this matter, we assume
the facts Siegler alleges are true. Siegler, a resident of
Ohio, owns and operates an Ohio-based sole proprietorship
in her own name, SES. According to Siegler, SES is “an
early stage micro-entity without any marketed pharmaceu-
tical products to date” and a “potential participant in the
CAR T cell pharmaceutical market both domestically and
abroad.” 1 Siegler II, 2019 WL 581719, at *2. In 2013, Sieg-
ler began collaborating with Dr. Richard Paul Junghans on
developing new CAR T cell-based therapeutics for virology
and oncology indications. See id. As part of the collabora-
tion, Siegler authored two scientific articles, “In Vivo Test-
ing of 3rd Generation Anti-CEA Designer CAR T Cells with
Bcl-XL in Pancreatic Cancer” and “Phase 1b/2 Study of
[2nd Generation] Anti-CEA Designer CAR T Cells in
Breast Cancer.” 2 Id. In 2015, Siegler registered these ar-
ticles with the United States Copyright Office. Id. Around
this time, Siegler made plans to use a facility at Prospect
CharterCARE Roger Williams Medical Center LLC
(“RWMC”) to develop her research. Id.Meanwhile, Dr. Junghans became employed on a part-
time basis at Tufts Medical Center, a non-profit medical
institution that is incorporated and has its principal place
1 CAR T cells, or CARs, are chimeric antigen recep-
tor T cells. CAR T cells are a potential cancer treatment.
2 Anti-CEA CAR T cells target the carcinoembryonic
antigen (“CEA”) on tumor cells.
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4 SIEGLER v. SORRENTO THERAPEUTICS, INC.
of business in Massachusetts. See id. at *2, *17. Dr.
Junghans also founded a company, BDL Products, Inc. Id.
at *2. TNK Therapeutics, Inc., a wholly owned subsidiary
of Sorrento Therapeutics, Inc., later acquired BDL Prod-
ucts. See id. at *3. They executed a Stock Purchase Agree-
ment that was allegedly contingent on an exclusive license
to several CARs between TNK Therapeutics and CARgenix
Holdings LLC. Id. According to Siegler, these agreements
contained a restrictive covenant that prohibited Dr.
Junghans and Tufts Medical Center from working with her
on their original collaboration. Id. Siegler ultimately ter-
minated her relationship with Dr. Junghans. Id.
In 2016, Sorrento Therapeutics and TNK Therapeutics
entered into an Immunotherapy Research Collaboration
Agreement with RWMC. Id. According to Siegler, the
agreement effectively precluded her from using the RWMC
facility at which she planned to develop her research. Id.
A 2018 extension of the agreement expressly placed the op-
eration of the RWMC facility under Sorrento Therapeu-
tics’s management. See id.
Sorrento Therapeutics also executed a Sponsored Re-
search Agreement with Tufts Medical Center. Id. at *4.
Under that contract, Sorrento Therapeutics awarded Tufts
Medical Center funding for “discrete research to be con-
ducted by Dr. Junghans at Tufts Medical Center in Boston,
Massachusetts.” Id. The two entities executed a second
Sponsored Research Agreement the next year. See id.
Around this time in 2016, Sorrento Therapeutics and
TNK Therapeutics entered into several more contracts
with other companies. These included joint-venture agree-
ments to commercialize anti-CEA CAR T constructs abroad
and licenses to CAR T constructs. See id.
Additionally, in 2016, RWMC initiated a clinical trial
to study the use of anti-CEA CAR T cells as a potential
treatment for liver and pancreatic cancers. Id. at *3.
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SIEGLER v. SORRENTO THERAPEUTICS, INC. 5
Finally, RWMC filed two U.S. patent applications, No.
15/210,818 (“the ’818 application”) and No. 15/099,370 (“the
’370 application”). Id. at *4. Tufts Medical Center also
filed a provisional application, Application No. 62/362,825
(“the ’825 application”). See id. These applications related
to anti-CEA CAR T cell constructs. The U.S. Patent and
Trademark Office has only granted the ’818 application,
which issued on September 11, 2018, as U.S. Patent No.
10,071,118 (“the ’118 patent”). See id.B. Procedural History
1. Dismissal of the First Amended Complaint
On July 24, 2018, Siegler and SES sued Sorrento Ther-
apeutics, TNK Therapeutics, CARgenix Holdings, BDL
Products, and Sorrento Therapeutics’s CEO Dr. Henry Ji
(collectively, the “Sorrento Defendants”), as well as the
Board of Directors of Sorrento Therapeutics, RWMC, an eq-
uity owner of CARgenix Holdings named Dr. Steven C.
Katz, and Dr. Junghans. On August 20, 2018, Siegler and
SES filed a First Amended Complaint as a matter of right,
naming Tufts Medical Center as an additional defendant.
According to the First Amended Complaint, the defend-
ants unlawfully researched anti-CEA CAR T cell con-
structs, mentioned them in corporate presentations, and
filed related patent applications. Based on these allega-
tions, Siegler asserted claims of copyright infringement
and trade secret misappropriation, as well as a Fifth
Amendment takings claim. Based on her allegations of the
defendants’ various business and contractual dealings,
Siegler also asserted violations of the Sherman Act, the
Clayton Act, the Foreign Trade Anti-Trust Improvement
Act, and California’s Unfair Competition Law. Finally,
Siegler sought a declaratory judgment that RWMC’s ’818
application was invalid.
The Sorrento Defendants moved to dismiss the First
Amended Complaint. Id. at *1. Each of the other named
Case: 20-1435 Document: 62 Page: 6 Filed: 07/20/2021
6 SIEGLER v. SORRENTO THERAPEUTICS, INC.
defendants, except for the Board of Directors of Sorrento
Therapeutics, timely joined the motion to dismiss. See id.
Tufts Medical Center also moved to dismiss for lack of per-
sonal jurisdiction. Id. at *1, *17.
The Board of Directors of Sorrento Therapeutics main-
tained that it is not a legal entity capable of being sued, as
set forth in the Sorrento Defendants’ motion to dismiss, but
belatedly joined the motion over 21 days after service of
process. See Notice of Joinder & Joinder by Putative De-
fendant the Board of Directors of Sorrento Therapeutics,
Inc. in the Sorrento Defendants’ Motion to Dismiss Plain-
tiff’s Amended Complaint at 1, Siegler II, 2019 WL 581719(No. 3:18-cv-01681-GPC-NLS); Memorandum of Points &
Authorities in Support of the Omnibus Motion at 16–17,
Siegler I, 2018 WL 9516052 (No. 3:18-cv-01681-GPC-NLS).
On October 30, 2018, Siegler moved for an entry of de-
fault and an order granting default judgment against the
Board of Directors. Memorandum of Points & Authorities
in Support of the Omnibus Motion at 16–17, Siegler I, 2018
WL 9516052 (No. 3:18-cv-01681-GPC-NLS). The district
court denied Siegler’s request for failure to secure an entry
of default from the Clerk, pursuant to Rule 55 of the Fed-
eral Rules of Civil Procedure. Siegler I, 2018 WL 9516052,
at *2. The court denied Siegler’s subsequent motion for re-
consideration but welcomed Siegler to request an entry of
default anew. Siegler v. Sorrento Therapeutics, Inc., No.
3:18-cv-01681-GPC-NLS, 2018 WL 6303728, at *1–2 (S.D.
Cal. Dec. 3, 2018).
Siegler also moved for leave to amend the First
Amended Complaint. Siegler II, 2019 WL 581719, at *6.
She sought to update her pleadings in two ways: (1) to in-
corporate the Patent Office’s issuance of the ’818 applica-
tion as the ’118 patent and (2) to identify a database of
SES’s, the defendants’ copying of which potentially in-
fringed Siegler’s copyrights. Id.Case: 20-1435 Document: 62 Page: 7 Filed: 07/20/2021
SIEGLER v. SORRENTO THERAPEUTICS, INC. 7
On February 13, 2019, the district court granted both
the Sorrento Defendants’ and Tufts Medical Center’s mo-
tions to dismiss and granted in part Siegler’s motion to file
a Second Amended Complaint. Id. at *20–21. The court
decided these motions without oral argument, pursuant to
Civil Local Rule 7.1(d)(1) of the Local Rules of Practice for
the United States District Court for the Southern District
of California (“Local Rules”), and vacated the scheduled
hearing. Id. at *1, *21.
The district court dismissed all claims against the
Board of Directors of Sorrento Therapeutics, as well as the
takings claim against all defendants, with prejudice. The
court explained that a corporate board of directors is not a
separate entity from the corporation it manages and that
it lacks the capacity to be sued. Id. at *14. The court found
no evidence that the Board of Directors existed independ-
ent of Sorrento Therapeutics and rejected Siegler’s argu-
ment that she could sue it pursuant to Section 14 of the
Clayton Act—which provides for personal liability of a cor-
poration’s individual directors, officers, or agents where
the corporation violates the penal provisions of antitrust
law. Id. at *13–14. The court also explained that the Fifth
Amendment applies only to government action. Id. at *16.
Because the court found no basis here for extending the
Fifth Amendment to private entities, the court determined
that further amendment would be futile. Id. at *16–17.
The district court dismissed Siegler’s copyright in-
fringement, trade secret misappropriation, and antitrust
claims without prejudice. See id. at *7–16. The court ex-
plained how the First Amended Complaint failed to state
specific elements of each of these claims but granted Sieg-
ler leave to amend them. See id. at *7–16. The court ad-
vised Siegler to: (a) specifically identify the protectable
elements of her copyrighted works that the defendants al-
legedly unlawfully copied, (b) clarify what trade secrets, if
any, were misappropriated, (c) provide details about
whether she redacted any of her submissions to the
Case: 20-1435 Document: 62 Page: 8 Filed: 07/20/2021
8 SIEGLER v. SORRENTO THERAPEUTICS, INC.
Copyright Office that allegedly contained trade secrets,
and (d) allege the existence of a relevant market and an
antitrust injury, both of which were required for her anti-
trust claims. See id. at *9, *11–13, *13 n.11. The district
court also dismissed without prejudice Siegler’s patent in-
validity claim. Id. at *14, *16.
The district court further determined that it had no
personal jurisdiction—general or specific—over Tufts Med-
ical Center. Id. at *18, *20. The court found that the de-
fendant was not at home in California and that its two
contracts with Sorrento Therapeutics were insufficient
minimum contacts with the State of California. See id. at
*18–20. The court rejected Siegler’s argument that per-
sonal jurisdiction could be grounded in Section 12 of the
Clayton Act—which provides nationwide personal jurisdic-
tion for antitrust suits—because it had dismissed Siegler’s
antitrust claims. Id. at *20. But the court granted Siegler
leave to amend because a second amended complaint
(a) might be able to allege general jurisdiction and (b) may
adequately plead antitrust claims supporting personal ju-
risdiction under Section 12 of the Clayton Act. Id.
Finally, two other determinations by the district court
are relevant to this appeal. First, the district court con-
cluded that only Siegler herself, not SES, was a plaintiff.
Id. at *1 n.1. The court explained that, under Ohio law, a
sole proprietorship has no legal identity separate from that
of the individual who owns it. Id. Second, the district court
declined to take judicial notice of several links to Securities
and Exchange Commission (“SEC”) filings in the First
Amended Complaint. Id. at *1 n.2. The court explained
that, even though it could take notice of the content of the
filings and the fact that they were filed, it could not take
notice of the truth of the content or any inferences drawn
therefrom. Id.
Siegler subsequently moved for reconsideration of the
district court’s dismissal of the First Amended Complaint.
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SIEGLER v. SORRENTO THERAPEUTICS, INC. 9
Siegler III, 2019 WL 1574321, at *1. The court denied the
motion, reasoning that Siegler had not identified any new
evidence or new law and that the court had not committed
clear error in dismissing the First Amended Complaint. Id.
at *2. The court also faulted Siegler for failing to provide
an affidavit accompanying her motion, as required by the
Local Rules. Id.
2. Dismissal of the Second Amended Complaint
On May 3, 2019, Siegler and SES filed a Second
Amended Complaint against all previously named defend-
ants. Siegler V, 2019 WL 3532294, at *5. The Second
Amended Complaint retained her claims of copyright in-
fringement, trade secret misappropriation, a Fifth Amend-
ment taking, antitrust violations, and invalidity of the ’118
patent. Id. Siegler added new claims of unjust, uncompen-
sated takings in violation of the Fourteenth Amendment
and unjust enrichment. Id. Siegler also added challenges
to the validity of RWMC’s ’370 application and Tufts Med-
ical Center’s ’825 application. Id. at *6.
Siegler’s factual allegations remained largely un-
changed. Id. She added that she sent Dr. Junghans drafts
of the articles that she later registered with the Copyright
Office. Id. at *2, *6. She also alleged that Dr. Junghans
executed a nondisclosure agreement with Sorrento Thera-
peutics that was intended to scuttle Siegler out of their
planned collaboration and to deprive her of her right of first
refusal on Dr. Junghans’s inventions. Id. Finally, Siegler
replaced the Board of Directors of Sorrento Therapeutics
with its individual members. Id. at *6.
The Sorrento Defendants moved to dismiss the Second
Amended Complaint, and the other defendants joined the
motion. Id. at *1 & n.1. Tufts Medical Center also moved
to dismiss for lack of personal jurisdiction. Id. at *1.
Around this time, Siegler moved for leave to file a third
amended complaint to supplement the Second Amended
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10 SIEGLER v. SORRENTO THERAPEUTICS, INC.
Complaint with “[n]ewly discovered information and addi-
tional updates” and a chart of various web documents.
Siegler IV, 2019 WL 2549248, at *4. The court denied her
leave because Siegler neither detailed how she would inte-
grate the web documents into a third amended complaint
nor attached a proposed amended pleading. Id. The court
added that it was not apparent how the web documents re-
lated to or cured any of the deficiencies in Siegler’s plead-
ings. Id. For similar reasons, the court denied Siegler’s
motion for reconsideration of her motion for leave to
amend. Siegler V, 2019 WL 3532294, at *26. The court
added that, after reviewing the purportedly newly discov-
ered information that Siegler sought to include in a third
amended complaint, “the Court is confident that none of
the information contained therein would have cured the de-
ficiencies” in her pleadings. Id.On August 2, 2019, the court granted the Sorrento De-
fendants’ motion to dismiss and denied Tufts Medical Cen-
ter’s motion to dismiss for lack of personal jurisdiction as
moot. Id. at *1, *24. As before, the court decided these
motions without oral argument. Id. at *1.
The district court dismissed all of Siegler’s claims with
prejudice because Siegler failed to cure the previously iden-
tified deficiencies. See id. at *7, *26. It found that further
amendment would be futile. See id. at *12–13, *18, *20–
22.
The court explained that Siegler failed to state a copy-
right infringement claim because the Second Amended
Complaint did not plead protectable expression. Id. at *8.
The court rejected Siegler’s theory of copyright—“if I obtain
copyright registration for an article describing a scientific
discovery, course of treatment, or cell construct, then I also
get to prevent others from performing, commercializing, or
utilizing the same.” Id. at *10. The court added that Sieg-
ler inadequately alleged copying, as well. For the same
reasons, the court dismissed Siegler’s unjust enrichment
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SIEGLER v. SORRENTO THERAPEUTICS, INC. 11
claim, which was predicated on the same allegations as her
copyright infringement claim. 3 Id. at *12.
The court also explained that Siegler failed to state a
trade secret misappropriation claim because the Second
Amended Complaint did not specify any particular trade
secrets. Id. at *13. According to the court, Siegler’s failure
to allege that she redacted her copyright registrations
when she filed with the Copyright Office precluded a favor-
able determination of trade secrets as a matter of law. Id.
at *12. Indeed, the court had previously explained that
registration necessarily required some degree of public ex-
posure and that submissions to the Copyright Office were
publicly accessible. See Siegler II, 2019 WL 581719, at *10
(citing, inter alia, 17 U.S.C. § 705(b)). Moreover, the court
found that the Second Amended Complaint’s new allega-
tion that Siegler sent drafts of the copyrighted articles to
Dr. Junghans contradicted the existence of a trade secret.
Siegler V, 2019 WL 3532294, at *13.
The court next explained that Siegler failed to state an
antitrust violation because she inadequately alleged (1) the
existence of a relevant market and (2) an injury to compe-
tition. See id. at *14–18. Indeed, even assuming that Sieg-
ler had adequately alleged a market of CAR T cell goods,
the court found that Siegler’s newly pled allegations of
other entities’ viable CAR T projects contradicted her claim
that the defendants had reduced competition in the mar-
ket. Id. at *17. The court dismissed Siegler’s claims under
Section 14 of the Clayton Act and California law because
they depended on the same inadequate allegations as her
antitrust claims. Id. at *18.
3 The court additionally held that the Copyright Act
preempted Siegler’s state-law cause of action. Siegler V,
2019 WL 3532294, at *12.
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12 SIEGLER v. SORRENTO THERAPEUTICS, INC.
The court also reiterated that it previously dismissed
Siegler’s Fifth Amendment takings claim with prejudice
because the Fifth Amendment generally only applies to
government action. Id. at *21–22. For the same reason,
the court dismissed Siegler’s new Fourteenth Amendment
claim with prejudice. Id.The court finally dismissed Siegler’s challenges to
RWMC’s ’118 patent, its ’370 application, and Tufts Medi-
cal Center’s ’825 application. Id. at *19–21.
Because the court dismissed the entirety of the Second
Amended Complaint with prejudice, as noted previously,
the court determined that Tufts Medical Center’s motion to
dismiss for lack of personal jurisdiction was moot. Id. at
*24.
On December 17, 2019, the district court denied Sieg-
ler’s motion to reconsider its dismissal of all claims in the
Second Amended Complaint with prejudice. Siegler VI,
2019 WL 68877594, at *6. The court reaffirmed its sub-
stantive rulings, further explaining that (1) it applied the
correct standard in resolving the defendants’ Rule 12(b)(6)
motion to dismiss and (2) its dismissal with prejudice due
to the futility of further amendment was proper. Id. at *6–
7.
3. Siegler’s Appeals
On January 16, 2020, Siegler filed two notices of ap-
peal. Her notice to the Ninth Circuit purported to appeal
the district court’s dismissal of her non-patent claims and
its denials of her motions for reconsideration. Appellee’s
Appx. 149–50. Her notice to this court purported to appeal
only the district court’s dismissal of her patent invalidity
claims. Id. at 153. In her briefing before this court, how-
ever, Siegler instead addressed other issues.
On January 27, 2020, the Ninth Circuit ordered Siegler
to pay the filing and docketing fees for her appeal or to file
a motion to proceed in forma pauperis within 21 days.
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SIEGLER v. SORRENTO THERAPEUTICS, INC. 13
Siegler v. Sorrento Therapeutics, Inc. (Siegler VII), No. 20-
55087, 2020 WL 4218311, at *1 (9th Cir. 2020). On May
13, 2020, the Ninth Circuit dismissed Siegler’s appeal for
failure to comply with the court’s orders, pursuant to Rule
42-1 of the Ninth Circuit Rules. Id. The next day, the dis-
trict court set an appeal mandate hearing. On June 8,
2020, the district court ordered the spreading of the man-
date. 4
We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(1).
II. DISCUSSION
Siegler presents ten issues for review on appeal. These
issues cover numerous substantive and procedural deter-
minations by the district court from the denial of her mo-
tion for default judgment against the Board of Directors of
Sorrento Therapeutics through the denial of her motion for
reconsideration of the dismissal of the Second Amended
Complaint. Siegler also objects to the district court’s set-
ting of an appeal mandate hearing date after she filed her
notices of appeal. But before we reach Siegler’s arguments,
we first address the appellees’ assertion that the Ninth Cir-
cuit’s mandate and the district court’s spreading of the
mandate constituted an adjudication on the merits of Sieg-
ler’s non-patent claims.
A. The Ninth Circuit’s Dismissal
Based on the Ninth Circuit’s dismissal of Siegler’s ap-
peal for failure to comply with its orders, the appellees ar-
gue that the law of the case and collateral estoppel preclude
4 Some district courts schedule a date on which the
mandate is “spread” and the federal appellate judgment be-
comes final. See Calderon v. U.S. Dist. Ct., 128 F.3d 1283,
1286 n.2 (9th Cir. 1997), overruled on other grounds by 163
F.3d 530 (9th Cir. 1998) (en banc).
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14 SIEGLER v. SORRENTO THERAPEUTICS, INC.
our consideration of the arguments Siegler makes as to her
non-patent claims. We disagree; the appellees read too
much into the Ninth Circuit’s dismissal.
At the outset, we have exclusive jurisdiction over Sieg-
ler’s entire case, including her non-patent claims, because
this court’s jurisdiction is case-specific, not issue-specific,
and because this case in part arises under patent law.
28 U.S.C. § 1295(a)(1). Here, Siegler sought a declaratory
judgment of patent invalidity, which the district court dis-
missed with prejudice. See Zenith Elecs. Corp. v. Exzec,
Inc., 182 F.3d 1340, 1346 (Fed. Cir. 1999) (“Our exclusive
jurisdiction over matters arising in whole or in part under
the patent laws is not defeated by the fact that the patent
claims have been dismissed with prejudice.”). That we
have exclusive jurisdiction over Siegler’s appeal counsels
against treating the Ninth Circuit’s dismissal for failure to
pay fees or to move to proceed in forma pauperis as an ad-
judication on the merits.
The doctrine of the law of the case provides the appel-
lees no help. Under that doctrine, when a court decides on
a rule of law, that decision should continue to govern the
same issues in subsequent stages in the same case. Chris-
tianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815–
16 (1988). This rule of practice promotes the finality and
efficiency of the judicial process by “protecting against the
agitation of settled issues.” Id. at 816 (internal quotation
marks and citation omitted). While courts should be loath
to revisit prior decisions of its own or of a coordinate court
absent extraordinary circumstances, they have the power
to do so in any circumstance. See id. at 817.
Here, the Ninth Circuit’s dismissal of Siegler’s appeal
does not operate as a decision on the merits of Siegler’s non-
patent claims, particularly where our sister circuit lacked
jurisdiction over any of Siegler’s claims. Moreover, Ninth
Circuit Rule 42-1 (as well as the dismissal order) contains
no indication that a dismissal for failure to prosecute an
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SIEGLER v. SORRENTO THERAPEUTICS, INC. 15
appeal to hearing necessarily constitutes an adjudication
on the merits.
The appellees’ reliance on In re Wiersma, 483 F.3d 933(9th Cir. 2007), is misplaced. There, the Ninth Circuit con-
sidered whether the Bankruptcy Appellate Panel of the
Ninth Circuit (“BAP”) had mistakenly dismissed an appeal
from the bankruptcy court for failure to prosecute when it
intended to dismiss the appeal as interlocutory. 5 See id. at
939–40. The Ninth Circuit rejected this interpretation of
the record, finding “no evidence that the BAP’s intent was
to dismiss the appeal as interlocutory.” Id. at 940. Sepa-
rately, it found that the bankruptcy court’s decision—i.e.,
the subject of the appeal before the BAP—was “a complete
adjudication of the issues at bar.” Id. at 938–39. The ap-
pellees conflate these determinations. The Ninth Circuit
did not hold that the BAP’s dismissal for failure to prose-
cute operated as a complete adjudication on the merits. We
therefore conclude that the doctrine of the law of the case
does not preclude our review of Siegler’s non-patent claims.
The doctrine of collateral estoppel is even more inap-
plicable here. Under collateral estoppel, once a court has
decided an issue of fact or law necessary to its judgment,
that decision may preclude relitigation of the issue in a suit
on a different cause of action involving a party to the first
case. Hydranautics v. FilmTec Corp., 204 F.3d 880, 885
(9th Cir. 2000). For the doctrine to apply, the party assert-
ing preclusion must establish, inter alia, that the first pro-
ceeding ended with a final judgment on the merits. See id.Because Siegler’s appeals to the Ninth Circuit and this
5 Circuit courts may establish a bankruptcy appel-
late panel composed of bankruptcy judges to hear and de-
termine certain appeals from bankruptcy courts. See
28 U.S.C. § 158(a), (b)(1), (c)(1). The decisions of the bank-
ruptcy appellate panel may be appealed to the circuit
courts. See id. at § 158(c)(2), (d)(1).
Case: 20-1435 Document: 62 Page: 16 Filed: 07/20/2021
16 SIEGLER v. SORRENTO THERAPEUTICS, INC.
court are not separate cases for purposes of collateral es-
toppel, and because the Ninth Circuit’s dismissal was not
a final judgment on the merits, collateral estoppel does not
foreclose our review of Siegler’s non-patent claims.
B. Siegler’s Arguments on Appeal
Turning to Siegler’s arguments on appeal, we review
issues not unique to patent law under the law of the re-
gional circuit in which the appeal would otherwise lie.
Centocor Ortho Biotech, Inc. v. Abbott Labs., 636 F.3d 1341,
1347 (Fed. Cir. 2011). We group Siegler’s arguments into
three main categories. First, Siegler challenges the dismis-
sal of several of her claims with prejudice. Second, Siegler
protests the denials of many of her motions, including for
default judgment, leave to amend, and reconsideration.
Third, Siegler objects to other decisions by the district
court, including its decision not to take judicial notice, its
decision to decide motions without oral argument, and its
decision to set an appeal mandate hearing.
1. Dismissal of Siegler’s Claims
Siegler argues that the district court erroneously dis-
missed (a) her Fifth Amendment takings claim, (b) her
trade secret misappropriation claim, and (c) her claims
against the Board of Directors of Sorrento Therapeutics.
See Appellant’s Br. 1, 6–8, 16. Siegler also disagrees with
the district court’s determinations that (d) Siegler is the
only plaintiff in the action and (e) the court lacked personal
jurisdiction over Tufts Medical Center. See id. at 8, 23. We
see no error.
The Ninth Circuit reviews the grant of a motion to dis-
miss de novo. Depot, Inc. v. Caring for Montanans, Inc.,
915 F.3d 643, 652 (9th Cir. 2019). To survive a motion to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face. Id. (quoting Ashcroft v. Iqbal, 556
Case: 20-1435 Document: 62 Page: 17 Filed: 07/20/2021
SIEGLER v. SORRENTO THERAPEUTICS, INC. 17
U.S. 662, 678 (2009)). Accordingly, we will affirm a dismis-
sal for failure to state a claim where “there is no cognizable
legal theory or an absence of sufficient facts alleged to sup-
port a cognizable legal theory.” Id.Siegler asserts that “[t]he sufficiency of the [Second
Amended Complaint] should not have been tested via [Fed-
eral Rule of Civil Procedure] 12(b)(6) . . . in light of the less-
ened standard that should have been applied to pleadings
prepared by a pro se litigant.” Appellant’s Br. 9. Moreover,
according to Siegler, any failure to state a claim for relief
would be “a mere technical deficiency.” Id.; see also id. at
7 (“Within this context, technical deficiencies in the plead-
ings of Appellants were the basis for the prejudicial dismis-
sals of CASD Document 75.”).
We find no legal support for these arguments. The
Ninth Circuit makes clear that pro se litigants remain
bound by the rules of procedure, even though courts are to
construe their pleadings liberally. 6 See Ghazali v. Moran,
46 F.3d 52, 54 (9th Cir. 1995); see also Arunachalam v. Ap-
ple, Inc., 806 F. App’x 977, 980 (Fed. Cir. 2020) (“Dr. Aru-
nachalam, though pro se, is required to follow the Federal
Rules of Civil Procedure the same as every other party that
litigates in the federal courts.”).
Moreover, the failure to state a plausible claim is not a
mere technical deficiency but a substantive shortcoming in
a plaintiff’s claim. Under the Federal Rules of Civil Proce-
dure, plaintiffs must state a cognizable basis for relief—
based on their factual allegations and without regard to
their ability to prove those allegations—before they can
proceed to proving the allegations and obtaining relief. A
6 To the extent Siegler argues that the district court
did not construe her pleadings liberally, we disagree. See,
e.g., Siegler II, 2019 WL 581719, at *8, *13; Siegler V, 2019
WL 3532294, at *18 n.13.
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18 SIEGLER v. SORRENTO THERAPEUTICS, INC.
plaintiff’s inability to simply state a cognizable basis for re-
lief and the facts to support it is a “basic deficiency” that
“should . . . be exposed at the point of minimum expendi-
ture of time and money by the parties and the court.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 558–60 (2007) (in-
ternal quotation marks omitted).
Finding no error with the Rule 12(b)(6) standard that
the district court applied, we turn now to each of the claims
about which Siegler makes arguments.
a. Takings Under the Fifth Amendment
We agree with the district court that Siegler fails to
state a cognizable takings claim under the Fifth Amend-
ment. Siegler’s principal shortcoming is that she has not
alleged a government action or a private action fairly at-
tributable to the government.
The Constitution generally protects individual rights
“only from government action, not from private action.”
Single Moms, Inc. v. Mont. Power Co., 331 F.3d 743, 746
(9th Cir. 2003); Lugar v. Edmondson Oil Co., 457 U.S. 922,
935 (1982) (“[M]ost rights secured by the Constitution are
protected only against infringement by governments.”). In-
cluded in these individual rights is the Fifth Amendment’s
guarantee against government seizure of private property
for public use without just compensation. The Takings
Clause of the Fifth Amendment does not apply to a private
party unless the private action may fairly be treated as
that of the state. See Single Moms, 331 F.3d at 747.
Here, Siegler acknowledges that “[n]one of the Defend-
ants-Appellees are the US government.” Appellant’s Br.
15; see id. at 1 (“One fact that was failed to be taken into
account is the fact that the uncompensated, unjust takings
of the intellectual property . . . of Appellants was and is be-
ing carried out by non-governmental entities.” (emphasis
added)). Moreover, even construing Siegler’s pleadings lib-
erally, neither the First nor the Second Amended
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SIEGLER v. SORRENTO THERAPEUTICS, INC. 19
Complaints contain any allegations that a governmental
actor took Siegler’s intellectual property without just com-
pensation. They instead relate to the alleged actions of pri-
vate parties that are not fairly attributable to the
government. For this reason, the district court correctly
determined that Siegler’s takings claim under the Fifth
Amendment was not cognizable. At bottom, Siegler was
not entitled to relief under the Fifth Amendment because
she had not alleged a critical element to her claim—gov-
ernment action.
Siegler appears to suggest that she has a cognizable IP
takings claim because the district court recognized that “a
cognizable claim existed with regard to the IP of Appel-
lants.” Appellant’s Br. 7; see Siegler II, 2019 WL 581719,
at *8 n.5 (“Plaintiff might have articulated a claim of un-
lawful appropriation by contending that Defendants copied
the copyrightable expression of her ideas.”). We decline to
read into the district court’s encouragement an approval of
Siegler’s takings claim. The district court immediately
clarified that, notwithstanding the potential to state a
claim of copyright infringement, Siegler had not supplied
the “critical element” of “alleging what if any part of her
copyrighted works were protected subject matter.” Siegler
II, 2019 WL 581719, at *8 n.5. The court added that it
could not supply this element for Siegler, advising her “to
specifically to identify [sic] what protectable elements of
her copyrighted works were copied unlawfully by defend-
ants.” 7 Id. at *8 n.5, *9.
7 Siegler’s arguments about her takings claim in-
clude two tables purporting to show the substantial simi-
larity between Siegler’s copyrights and the defendants’
patent applications. Appellant’s Br. 12–15. But, as the dis-
trict court explained, the copyright laws do not protect con-
cepts or ideas in copyrighted works. See Siegler V, 2019
3532294, at *10. Siegler makes no arguments on appeal
Case: 20-1435 Document: 62 Page: 20 Filed: 07/20/2021
20 SIEGLER v. SORRENTO THERAPEUTICS, INC.
Siegler also argues that the district court inappropri-
ately applied 28 U.S.C. § 1498, which governs patent and
copyright infringement by the government. Appellant’s Br.
15. But the district court did not apply, or even mention,
this statute. Further, the district court dismissed Siegler’s
takings claim because the Fifth Amendment requires gov-
ernment action (and not because it conflated the Fifth
Amendment with the statutory provision on copyright in-
fringement by the government).
Siegler’s reliance on Kelo v. City of New London, 545
U.S. 469 (2005), cannot rescue her takings claim. Accord-
ing to Siegler, Kelo stands for the proposition that “private
property—such as the IP of a sole proprietorship—cannot
be taken for public use without just compensation.” Appel-
lant’s Br. 15; see id. at 3. Siegler is correct insofar as the
government cannot take the private property of an individ-
ual for public use without just compensation. But, con-
sistent with the Supreme Court’s takings jurisprudence,
the Court in Kelo considered whether the City of New Lon-
don, Connecticut—i.e., a municipal government—violated
the Takings Clause. 545 U.S. at 472. Kelo does not recog-
nize a right to just compensation from private entities. For
at least this reason, the district court correctly dismissed
Siegler’s takings claim for failure to state a claim. 8
that the defendants’ patent applications are substantially
similar to her expression.
8 Siegler appears to argue that her procedural due
process rights were violated by the appellees and the dis-
trict court, both of whom, she alleges, deprived her of her
interest in her two copyrights. See Appellant’s Br. 15–16.
Her assertion against the appellees fails because they are
not government actors. See Siegler V, 2019 WL 3532294,
at *22 & n.18 (citing Geneva Towers Tenants Org. v. Feder-
ated Mortg. Investors, 504 F.2d 483, 487 (9th Cir. 1974)).
We see no basis to her assertion against the district court,
Case: 20-1435 Document: 62 Page: 21 Filed: 07/20/2021
SIEGLER v. SORRENTO THERAPEUTICS, INC. 21
b. Trade Secret Misappropriation
We also agree with the district court that Siegler fails
to state a cognizable trade secret misappropriation claim.
Siegler’s principal shortcoming is that she has not alleged
the existence of a trade secret. The pleadings at most as-
sert that the contents of Siegler’s copyrights are protected
by trade secret law. See Siegler V, 2019 WL 3532294, at
*10. But “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
Moreover, we reject Siegler’s argument that “docu-
ments filed with the [C]opyright [O]ffice are not discovera-
ble under any circumstance by an outsider.” See
Appellant’s Br. 16. Title 17 of the U.S. Code, Section 705,
plainly permits public inspection of certain records and in-
dexes, “as well as the articles deposited in connection with
completed copyright registrations and retained under the
control of the Copyright Office.” 17 U.S.C. § 705(b); see
37 C.F.R. § 201.2 (“[I]nspection of copies or identifying ma-
terial deposited in connection with a completed copyright
registration may be undertaken in the Records Research
and Certification Section.”). The district court did not con-
fuse the Copyright Office with the Patent Office, as Siegler
argues. See Appellant’s Br. 16. That the Patent Office pub-
lishes patent applications is not relevant to the Copyright
Office’s mandate to make deposited materials open to pub-
lic inspection. Therefore, the district court’s dismissal of
Siegler’s trade misappropriation claim was proper.
c. The Board of Directors of Sorrento Therapeutics
We next agree that Siegler fails to state a cognizable
claim against the Board of Directors of Sorrento
which patiently explained its rulings and painstakingly af-
forded Siegler an opportunity to present her arguments in
writing.
Case: 20-1435 Document: 62 Page: 22 Filed: 07/20/2021
22 SIEGLER v. SORRENTO THERAPEUTICS, INC.
Therapeutics because it is not a separate legal entity from
Sorrento Therapeutics. Under the Federal Rules of Civil
Procedure, for parties other than an individual or corpora-
tion, their capacity to be sued is determined “by the law of
the state where the court is located,” here, California. 9
Fed. R. Civ. P. 17(b). The Supreme Court of California has
not addressed whether a corporation’s board of directors
may be sued as a legal entity separate from the corporation
itself. But California’s Corporation Code only identifies a
corporation or association as entities that may be sued.
Cal. Corp. Code § 105; see Theta Chi Fraternity, Inc. v. Le-
land Stanford Junior Univ., 212 F. Supp. 3d 816, 821 (N.D.
Cal. 2016). We are persuaded that, under California law,
a plaintiff may not sue a corporation’s board of directors as
an entity separate from the corporation.
Siegler argues that Section 14 of the Clayton Act pro-
vides “the authority under which the [Sorrento Therapeu-
tics] Board of Directors could be property [sic] sued.”
Appellant’s Br. 7. We disagree. Section 14 of the Clayton
Act extends a corporation’s violation of a penal provision of
the antitrust laws to individual directors who authorized
or ordered the acts constituting the violation. See 15 U.S.C.
§ 24. Moreover, the statutory provision is penal; it cannot
apply to Siegler’s civil case. See id. (“[S]uch violation shall
be deemed a misdemeanor . . . .”); United States v. Wise,
370 U.S. 405, 414–15 (1962). It does not authorize Siegler
to bring civil claims against the collective Board of Direc-
tors of Sorrento Therapeutics. The district court therefore
correctly dismissed the Board of Directors of Sorrento
Therapeutics from the First Amended Complaint.
9 Rule 17(b) of the Federal Rules of Civil Procedure
provides two exceptions. Siegler does not argue that these
exceptions apply, nor do we see their relevance here.
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SIEGLER v. SORRENTO THERAPEUTICS, INC. 23
d. SES
We also agree with the district court that the only
plaintiff in this action is Siegler. Under Ohio law, “[a] sole
proprietorship has no legal identity separate from that of
the individual who owns it.” Patterson v. V & M Auto Body,
589 N.E.2d 1306, 1308 (Ohio 1992). Here, there is no dis-
pute that SES is a sole proprietorship. Necessarily, SES
“has no legal identity separate from that of the individual
who owns it,” i.e., Siegler. See id.Siegler argues that such a determination would deny
either her or SES’s due process rights. See Appellant’s Br.
23. According to Siegler, she could not organize SES as a
corporation because corporations must be represented by
counsel in court. Id. Siegler explains that, if SES were a
corporation, it “would have been denied total access to the
legal system by its current inability to afford legal repre-
sentation.” Id. We are unpersuaded by Siegler’s argument
because it assumes its conclusion. For the district court’s
decision to deny either her or SES’s due process rights,
Siegler and SES must be distinct legal identities, each pos-
sessing its own distinct right to due process. But Patterson
requires treating Siegler and SES as having the same legal
identity with one and the same right to due process. Be-
cause the district court’s decision did not violate Siegler’s
due process rights, it necessarily did not violate SES’s. 10
Siegler also argues that her and SES’s inability to fully
exercise their rights to legal redress based on the corporate
structure of SES “may unfairly single out sole proprietors
in a manner that itself may be deemed unconstitutional
within the framework of the Bill of Attainder.” Id. Bills of
attainder are “[l]egislative acts, no matter what their form,
10 We are bound by the facts before us and decline to
consider the implications of the hypothetical where SES is
a corporation.
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24 SIEGLER v. SORRENTO THERAPEUTICS, INC.
that apply either to named individuals or to easily ascer-
tainable members of a group in such a way as to inflict pun-
ishment on them without a judicial trial.” United States v.
Brown, 381 U.S. 437, 448–49 (1965); see U.S. Const. art. I,
§§ 9–10. Siegler’s argument lacks merit, at minimum, be-
cause there is no legislative act here, much less one that
punishes named individuals or easily ascertainable mem-
bers of a group without a judicial trial. For these reasons,
the district court properly dismissed SES.
e. Personal Jurisdiction over Tufts Medical Center
Finally, we decline to reach the issue of whether the
district court had personal jurisdiction over Tufts Medical
Center. We are unpersuaded by Siegler’s arguments that
the district court erred in dismissing the First and Second
Amended Complaints against all defendants (including
Tufts Medical Center). It is therefore unnecessary to fur-
ther review whether Siegler’s claims against Tufts Medical
Center would have been properly dismissed for a lack of
personal jurisdiction.
2. Denials of Siegler’s Motions
Siegler argues that the district court erroneously de-
nied (a) her motion for default judgment against the Board
of Directors of Sorrento Therapeutics, (b) her motion for
leave to file a third amended complaint, and (c) several of
her motions for reconsideration. We disagree.
The Ninth Circuit reviews denials of motions for de-
fault judgment, leave to amend, and reconsideration for
abuse of discretion. See Eitel v. McCool, 782 F.2d 1470,
1471 (9th Cir. 1986) (motions for default judgment); Curry
v. Yelp Inc., 875 F.3d 1219, 1224 (9th Cir. 2017) (motions
for leave to amend); SEC v. Platforms Wireless Int’l Corp.,
617 F.3d 1072, 1100 (9th Cir. 2010) (motions for reconsid-
eration). A district court abuses its discretion when it
makes an error of law, when it rests its decision on clearly
erroneous findings of fact, or when the appellate court is
Case: 20-1435 Document: 62 Page: 25 Filed: 07/20/2021
SIEGLER v. SORRENTO THERAPEUTICS, INC. 25
left with “a definite and firm conviction that the district
court committed a clear error of judgment.” United States
v. 4.85 Acres of Land, 546 F.3d 613, 617 (9th Cir. 2008) (ci-
tation omitted).
a. Motion for Default Judgment
The district court did not abuse its discretion in deny-
ing Siegler’s motion for default judgment against the Board
of Directors of Sorrento Therapeutics. Rule 55 of the Fed-
eral Rules of Civil Procedure provides a two-step process
for obtaining an entry of default judgment. See Eitel, 782
F.2d at 1471. First, a party must secure an entry of default
by the court clerk. See Fed. R. Civ. P. 55(a). The entry of
default is “an official recognition of the fact that one party
is in default.” 10A C. Wright & A. Miller, Federal Practice
and Procedure § 2692 (4th ed.). A defendant who fails to
answer within the time specified by the rules is in default
even if that fact is not officially noted, i.e., even if there is
no entry of default. See id.; Hughes v. Port of Seattle, Nos.
87-3627, -3650, 1988 WL 60164, at *2 (9th Cir. 1988) (un-
published table decision) (“The party must seek leave even
if there has not been a formal entry of default once the
party is technically in default.”). Second, only after an en-
try of default may a party seek a default judgment. See
10A C. Wright & A. Miller, Federal Practice and Procedure
§ 2682.
A district court may set aside an entry of default for
good cause under Rule 55(c) or a final default judgment un-
der Rule 60(b). Fed. R. Civ. P. 55(c). Courts have been
extremely lenient in treating other pleadings as requests
for leave to set aside a default. See Hughes, 1988 WL
60164, at *3; Davies v. Guinn Res. Co., No. 91-15065, 1992
WL 317249, at *1 (9th Cir. 1992) (unpublished table deci-
sion) (“The district court was free to construe Guinn’s [be-
lated] answer as a motion to set aside the default, and its
order denying the motion to strike must be viewed as set-
ting aside Guinn’s default.”).
Case: 20-1435 Document: 62 Page: 26 Filed: 07/20/2021
26 SIEGLER v. SORRENTO THERAPEUTICS, INC.
Here, the district court denied Siegler default judg-
ment because Siegler had not secured an entry of default
prior to moving for default judgment. Siegler I, 2018 WL
9516052, at *2. While we are inclined to agree with that
conclusion, we also affirm the denial of Siegler’s motion for
a different reason. See Eitel, 782 F.2d at 1471 (“[W]e need
not agree with the district court’s reasoning to affirm. We
may affirm on any ground finding support in the record.”).
As already discussed, the Board of Directors of Sorrento
Therapeutics is not a separate legal entity from the corpo-
ration it serves. It is beyond dispute that Sorrento Thera-
peutics timely responded to the First Amended Complaint
by filing a motion to dismiss in part on that ground. There-
fore, the Board timely responded to the First Amended
Complaint because it and the corporation are the same en-
tity. 11
Siegler argues that the district court denied her motion
for default judgment “on a mere technicality (i.e., that Ap-
pellants had not first asked the Clerk for the entry of de-
fault).” See Appellant’s Br. 22. We do not need to reach
that argument because we affirm the denial of her motion
for a different reason. Moreover, denying default judgment
here furthers the goal of resolving cases on their merits.
See 10A C. Wright & A. Miller, Federal Practice and Proce-
dure § 2681 (“Under modern procedure, defaults are not fa-
vored by the law and any doubts usually will be resolved in
11 Even if the Board were a separate entity from the
corporation it serves, we would view the district court’s de-
nial of Siegler’s motion as setting aside the Board’s default.
See Hughes, 1988 WL 60164, at *2 (“[T]he district court de-
nied Hughes’ motion for a default judgment. We find that
in so doing, the court implicitly set aside the default.”).
There is good cause to set aside the default here because
the Board disputed whether it had the capacity to be sued.
See Fed. R. Civ. P. 55(c).
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SIEGLER v. SORRENTO THERAPEUTICS, INC. 27
favor of the defaulting party. The reason for this attitude
is that contemporary procedural philosophy encourages
trial on the merits.”). For these reasons, the district court
did not abuse its discretion in denying Siegler’s motion for
default judgment.
b. Motion for Leave to Amend
The district court also did not abuse its discretion in
denying Siegler leave to file a third amended complaint.
Federal Rule of Civil Procedure 15(a) provides that a party
may amend its complaint once “as a matter of course” be-
fore a responsive pleading is served. DCD Programs, Ltd.
v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987); Fed. R. Civ.
P. 15(a)(1). In all other cases, a party may only amend its
pleading with the opposing party’s written consent or the
court’s leave. Fed. R. Civ. P. 15(a)(2). A court should freely
give leave when justice so requires. Id. But the liberality
in granting leave to amend is “subject to the qualification
that amendment of the complaint does not cause the oppos-
ing party undue prejudice, is not sought in bad faith, and
does not constitute an exercise in futility.” DCD Programs,
833 F.2d at 186 (emphasis added) (citations omitted).
Here, the district court denied Siegler leave because
Siegler had not explained how the newly discovered infor-
mation in a chart of links to web documents “relate to or
cure any of the deficiencies identified” in the First
Amended Complaint. Siegler IV, 2019 WL 2549248, at *4.
In denying Siegler’s corresponding motion for reconsidera-
tion, the district court added that, after reviewing the
newly discovered information, it was confident that none of
that information “would have cured the deficiencies identi-
fied in the [First Amended Complaint], or in the present
order dismissing the [Second Amended Complaint].” Sieg-
ler V, 2019 WL 3532294, at *26. We see no error of law or
clearly erroneous findings of fact in the district court’s
analysis. This is particularly so where (1) the district court
advised Siegler on how to amend her claims when it
Case: 20-1435 Document: 62 Page: 28 Filed: 07/20/2021
28 SIEGLER v. SORRENTO THERAPEUTICS, INC.
granted her leave to file a Second Amended Complaint,
(2) Siegler did not cure those deficiencies in the Second
Amended Complaint, and (3) Siegler’s newly discovered in-
formation did not cure her pleadings. See Siegler II, 2019
WL 581719, at *9, *11–13, *13 n.11; Siegler V, 2019 WL
3532294, at *7, *12–13, *17, *23–26. Further, we are un-
persuaded by Siegler’s bare, unsupported contention in her
brief that the deficiencies in the Second Amended Com-
plaint “could have been cured by additional amendment(s)
had leave been granted to file a third amended complaint.”
See Appellant’s Br. 9.
Siegler presents three further reasons for reversing the
district court’s denial of her motion for leave to amend. We
reject each of them.
First, Siegler argues that the district court should have
permitted her more than a single opportunity to amend her
complaint. See id. at 10. But this argument is duplicative
of her complaints about the district court’s denial of leave
to file a third amended complaint. And it does not address
the court’s conclusions that filing additional amendments
would be futile. None of the cases Siegler cites mandates a
minimum number of times a plaintiff may amend her
pleadings. See id.
Second, Siegler argues that she was effectively denied
a meaningful opportunity to be heard because the court dis-
missed her case before discovery and, therefore, she was
“limited in the proof that could be provided.” Id. at 10–11.
This argument stems from a misunderstanding of the
standards applied to a Rule 12(b)(6) motion. A court decid-
ing such a motion must “accept all factual allegations in
the complaint as true.” Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007). No evidentiary proof
Case: 20-1435 Document: 62 Page: 29 Filed: 07/20/2021
SIEGLER v. SORRENTO THERAPEUTICS, INC. 29
of factual allegations is required. 12 Therefore, the district
court did not deny Siegler a meaningful opportunity to be
heard when it dismissed her claims prior to discovery.
Third, Siegler argues that the district court gave lee-
way to the defendants by denying Siegler’s motion for de-
fault judgment on a “very minor technicality” but
inconsistently denied her motion for leave to file a third
amended complaint. Appellant’s Br. 11. Because the
Board of Directors of Sorrento Therapeutics is the same de-
fendant as the corporation it serves, we disagree that deny-
ing Siegler’s motion for default judgment is based on a very
minor technicality. See supra Section II.B.2.a. Nor is that
denial inconsistent with the district court’s denial of Sieg-
ler’s motion to amend. Reviewing both of the district
court’s decisions does not leave us with a definite and firm
conviction that the district court committed a clear error of
judgment. For these reasons, the district court did not err
in denying Siegler’s motion for leave to amend.
c. Motions for Reconsideration
Finally, the district court did not abuse its discretion in
denying Siegler’s motions for reconsideration of (1) the dis-
missal of the First Amended Complaint, (2) the dismissal
of the Second Amended Complaint, and (3) the denial of
leave to file a third amended complaint. Siegler does not
explain how the district court abused its discretion, and we
see no error of law or clearly erroneous findings of fact in
12 Siegler contends that Haines v. Kerner, 404 U.S.
519 (1972), confers on litigants a right to offer proof to sup-
port a complaint. Appellant’s Br. 11. Not so. The Court
instead determined that the plaintiff’s complaint survived
a Rule 12(b)(6) motion and that the case could proceed to
discovery: the plaintiff’s allegations were “sufficient to call
for the opportunity to offer supporting evidence.” Haines,
404 U.S. at 519–20.
Case: 20-1435 Document: 62 Page: 30 Filed: 07/20/2021
30 SIEGLER v. SORRENTO THERAPEUTICS, INC.
its analyses. Instead, Siegler protests the district court’s
discretion to grant reconsideration, which “essentially sets
up pro se litigants for potentially erroneous and manifestly
unjust dismissals.” See Appellant’s Br. 17. This is an in-
correct understanding of our standard of review, where a
district court abuses its discretion when it makes an error
of law, when it rests its decision on clearly erroneous find-
ings of fact, or when we are left with a definite and firm
conviction that the district court committed a clear error of
judgment. 4.85 Acres of Land, 546 F.3d at 617. We there-
fore uphold the district court’s denials of Siegler’s motions
for reconsideration.
3. Other Discretionary Decisions
Siegler challenges (1) the district court’s refusal to take
judicial notice of SEC filings and other documents linked
in her pleadings, (2) the district court’s vacatur of three
hearings in this case, and (3) the district court’s setting of
an appeal mandate hearing date after she filed her notices
of appeal. Appellant’s Br. 8, 17–19, 22. Siegler also lists
several “instances of perceived disparate treatment and/or
prejudice.” See id. at 21. We are not persuaded by these
arguments.
The Ninth Circuit reviews the decision to take judicial
notice for abuse of discretion. Khoja v. Orexigen Therapeu-
tics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). It reviews a
district court’s compliance with local rules under the same
standard. Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir.
1993).
First, the district court did not abuse its discretion by
declining to take judicial notice of SEC filings and other
documents linked in Siegler’s pleadings. Siegler argues
that the documents in her pleadings “were representative
of transactions or the commercial elements by which de-
fendants unjustly enriched themselves,” as well as of com-
mercial use. Appellant’s Br. 8. But a court may only take
judicial notice of adjudicative facts—facts of a particular
Case: 20-1435 Document: 62 Page: 31 Filed: 07/20/2021
SIEGLER v. SORRENTO THERAPEUTICS, INC. 31
case—that are not subject to reasonable dispute. See Fed.
R. Evid. 201 & Notes. The district court may not take ju-
dicial notice of Siegler’s desired inference, drawn from her
linked documents, that the defendants unjustly enriched
themselves. Moreover, taking judicial notice of the exist-
ence of certain commercial transactions, like the acquisi-
tion of BDL Products, does not aide Siegler. The district
court dismissed her copyright infringement and unjust en-
richment claims for a separate reason: Siegler failed to ar-
ticulate the protectable elements of her copyrights. See
Siegler V, 2019 WL 3532294, at *12.
Second, the district court did not abuse its discretion
by vacating three scheduled motions hearings. It was
within the court’s discretion to resolve motions without
oral argument. See, e.g., Carpinteria Valley Farms, Ltd. v.
Cnty. of Santa Barbara, 344 F.3d 822, 832 n.6 (9th Cir.
2003). Indeed, Civil Local Rule 7.1(d) expressly permits as
much: “A judge may, in the judge’s discretion, decide a mo-
tion without oral argument.” 13 To the extent Siegler ar-
gues that the district court’s vacaturs of hearings denied
her an opportunity to be heard, the Ninth Circuit has re-
soundingly rejected that argument. “[A]n opportunity to be
heard does not require an oral or evidentiary hearing on
the issue. The opportunity to brief the issue fully satisfies
due process requirements.” Pac. Harbor Cap., Inc. v. Car-
nival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000)
(citations omitted).
13 Rule 78 of the Federal Rules of Civil Procedure per-
mit courts “by rule or order” to “provide for submitting and
determining motions on briefs, without oral hearings.”
Fed. R. Civ. P. 78(b). Siegler may disagree with the South-
ern District of California’s decision to permit rulings on mo-
tions without oral argument, but we see no basis for
overturning that decision.
Case: 20-1435 Document: 62 Page: 32 Filed: 07/20/2021
32 SIEGLER v. SORRENTO THERAPEUTICS, INC.
Third, even assuming (without deciding) that the dis-
trict court abused its discretion in setting a date to spread
the Ninth Circuit’s mandate, we fail to see how that error
would affect Siegler’s rights. Indeed, we have exclusive ju-
risdiction over Siegler’s entire case, see supra Section II.A,
Siegler had an opportunity to present arguments to this
court, and we have considered each of the arguments she
raised. For this reason, even if the district court erred in
this regard, the error would be harmless.
Finally, we consider the many instances of purported
unfair treatment by the district court. See Appellant’s Br.
20–21. While we can understand that Siegler feels unfairly
treated as a result of the events she outlines, she was
treated more than fairly by the district court.
III. CONCLUSION
We have considered Siegler’s remaining arguments
and find them to be without merit. We therefore affirm.
AFFIRMED
COSTS
No costs.