Monique Manchouck v. Mondelez Int'l

FILED
NOT FOR PUBLICATION MAY 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONIQUE MANCHOUCK, as an No. 13-17029
individual, and on behalf of all others
similarly situated, D.C. No. 3:13-cv-02148-WHA
Plaintiff - Appellant,
MEMORANDUM*
v.
MONDELEZ INTERNATIONAL, INC.,
an Illinois corporation, DBA Nabisco,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted May 14, 2015**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: O’SCANNLAIN and IKUTA, Circuit Judges and BURNS,*** District
Judge.
Monique Manchouck appeals the district court’s dismissal of her class action
suit against Mondelez International, Inc., dba Nabisco (Nabisco) with prejudice.
She alleges only that the district court abused its discretion in denying leave to
amend; she does not challenge its dismissal of her complaint under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
We decline to consider Manchouk’s new proposal for amending her
complaint to cure its defects, because she failed to first present the proposed
amendment to the district court either in opposition to a motion to dismiss or in a
motion for reconsideration under Rules 59(e) or 60(b) of the Federal Rules of Civil
Procedure. See Vincent v. Trend W. Technical Corp., 828 F.2d 563, 570 (9th Cir.
1987). Moreover, even if we considered Manchouk’s proposed amendment, it
does no more than restate an allegation in paragraph 22 of the First Amended
Complaint. Manchouk raises the additional argument that other Newtons products
list fruits rather than fruit purees as ingredients, but fails to explain the legal
significance of this fact. Accordingly, the district court did not err in concluding
***
The Honorable Larry A. Burns, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
2
that any further amendment would be futile. See DCD Programs, Ltd. v. Leighton,
833 F.2d 183, 188 (9th Cir. 1987).
AFFIRMED.
3