Dennis Hellervik v. 3m Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 16 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DENNIS HELLERVIK and THO No. 12-56373
HELLERVIK,
D.C. No. 2:12-cv-00522-RGK-
Plaintiffs - Appellants, FMO
v.
MEMORANDUM*
3M COMPANY; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted June 6, 2014
Pasadena, California
Before: FISHER and MURGUIA, Circuit Judges, and BATTAGLIA, District
Judge.**
Dennis and Tho Hellervik appeal from the district court’s dismissal of their
complaint for asbestos-related injuries and from its denial of leave to amend their
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
complaint. Reviewing for abuse of discretion, Henry A. v. Willden, 678 F.3d 991,
998 (9th Cir. 2012), we reverse the district court’s denial of leave to amend. We
need not decide whether the complaint was properly dismissed.
“Dismissal with prejudice and without leave to amend is not appropriate
unless it is clear on de novo review that the complaint could not be saved by
amendment.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir. 2003) (citing Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996)).
Here, the only reason the district court gave for denying leave to amend was
that the Hellerviks “have already had two chances to state sufficient factual
allegations to support their claims.” This is no reason not to permit amendment of
a complaint. See Foman v. Davis, 371 U.S. 178, 182 (1962) (identifying “undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [and] futility of
amendment” as the sort of factors that may justify denying leave to amend a
complaint); Henry A., 678 F.3d at 1005 (“‘[A] district court should grant leave to
amend . . . unless it determines that the pleading could not possibly be cured by the
allegation of other facts.’” (quoting Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
2000)).
2
Because the district court did not give a legitimate reason for withholding
leave to amend, it abused its discretion. See Eminence Capital, 316 F.3d at 1052
(“A district court’s failure to consider the relevant factors and articulate why
dismissal should be with prejudice instead of without prejudice may constitute an
abuse of discretion.” (citing Foman, 371 U.S. at 182)). We remand to the district
court so that the Hellerviks may file an amended complaint.
REVERSED and REMANDED.
3