Robert Caruso v. Washington State Bar Associati

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT E. CARUSO; SANDRA L. No. 17-35410
FERGUSON, Esquire,
D.C. No. 2:17-cv-00003-RSM
Plaintiffs-Appellants,
v. MEMORANDUM*
WASHINGTON STATE BAR
ASSOCIATION 1933, a legislatively
created Washington association, State Bar
Act (WSBA 1933); et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief Judge, Presiding
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Robert E. Caruso appeals from the district court’s judgment dismissing his
42 U.S.C. § 1983 action seeking declaratory and injunctive relief. Sandra L.
*
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).
Ferguson appeals pro se from the district court’s order denying her motion to
vacate the judgment and to amend the first amended complaint. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal
Rule of Civil Procedure 12(b)(6). Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th
Cir. 2008). We review for an abuse of discretion a denial of a motion under either
Federal Rule of Civil Procedure 59(e) or Rule 60(b). Sch. Dist. No. 1J, Multnomah
Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We affirm.
As to Caruso, the district court properly dismissed the action because he
failed to allege facts sufficient to state a plausible claim. See Ashcroft v. Iqbal, 556
U.S. 662, 678, 681 (2009) (to avoid dismissal, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face” and conclusory allegations are not entitled to be assumed true) (citation and
internal quotation marks omitted)); Keller v. State Bar of Cal., 496 U.S. 1, 13-14
(1990) (state bar association may constitutionally fund activities germane to the
goals of regulating the legal profession and improving the quality of legal services
out of the mandatory dues of all members); Lathrop v. Donohue, 367 U.S. 820, 843
(1961) (Brennan, J., plurality opinion) (state bar association may constitutionally
require mandatory membership and dues without impinging on protected rights of
association); Rosenthal v. Justices of the Superior Court of Cal., 910 F.2d 561 (9th
Cir. 1990) (“The lawyer subject to discipline is entitled to procedural due process,
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including notice and an opportunity to be heard.” (citing In re Ruffalo, 390 U.S.
544, 550 (1968))); see also Wash. Rev. Code § 2.48.050 (2018) (authorizing board
of governors of the Washington State Bar Association to adopt rules “concerning
membership . . . [and] the enrollment and privileges of membership”).
The district court did not abuse its discretion by denying leave to amend
because amendment would have been futile. See Chappel v. Lab. Corp. of Am.,
232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of review and
explaining that “[a] district court acts within its discretion to deny leave to amend
when amendment would be futile”).
We reject as without merit Caruso’s contentions of fraud upon the district
court.
As to Ferguson, we lack jurisdiction to review the district court’s judgment.
After Ferguson voluntarily dismissed her timely appeal of the judgment, her
subsequent Rule 59(e) motion did not toll the time to file an appeal. Thus, her
amended notice of appeal is untimely as to the judgment. See Fed. R. App. P.
4(a)(1)(A), 4(a)(4) (notice of appeal must be filed within 30 days after entry of
judgment or order appealed from; time to file an appeal runs from entry of the
order disposing of timely post-judgment tolling motion); United States v. Arevalo,
408 F.3d 1233, 1236-37 (9th Cir. 2005) (once an appellant voluntarily dismisses
her appeal, this court lacks jurisdiction unless appellant moves to reinstate within
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the time limits for a notice of appeal or seeks an extension of time from the district
court to re-file the notice of appeal); Stephanie-Cardona LLC v. Smith’s Food &
Drug Ctrs., Inc., 476 F.3d 701, 703 (9th Cir. 2007) (“A timely notice of appeal is a
non-waivable jurisdictional requirement.”).
The district court did not abuse its discretion by denying Ferguson’s post-
judgment motion to vacate judgment and amend pleading because Ferguson failed
to demonstrate any basis for relief. See Sch. Dist. No. 1J, 5 F.3d at 1262-63
(grounds for relief under Rule 59 or Rule 60); Lindauer v. Rogers, 91 F.3d 1355,
1357 (9th Cir. 1996) (“[O]nce judgment has been entered in a case, a motion to
amend the complaint can only be entertained if the judgment is first reopened
under a motion brought under Rule 59 or 60.”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Defendants’ motion to take judicial notice (Docket Entry No. 40) is denied
as unnecessary.
AFFIRMED.
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