Ye Jiang v. Zhong Fang

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YE JIANG; et al., No. 21-16292
Plaintiffs-Appellants, D.C. No.
1:20-cv-00100-JAO-KJM
and
EISAKU KATO, MEMORANDUM*
Plaintiff,
v.
ZHONG FANG, AKA Johnson Fang; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Jill Otake, District Judge, Presiding
Submitted September 22, 2023**
Before: SCHROEDER, RAWLINSON and BRESS, Circuit Judges.
*
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).
Ye Jiang, et al. (Appellants) appeal the district court’s dismissal of their First
Amended Verified Complaint (FAVC)1 alleging securities fraud and various other
claims against Zhong Fang, et al. (Appellees). Appellants also appeal the denial of
their third motion for leave to file a Second Amended Verified Complaint (SAVC).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
“We review a district court’s dismissal under Rule 12(b)(1) for lack of
standing de novo. . . .” Unified Data Servs., LLC v. Fed. Trade Comm’n, 39 F.4th
1200, 1209 (9th Cir. 2022) (citations omitted). “We review the denial of a motion
for leave to amend under the deferential abuse of discretion standard . . .” Nat’l
Ass’n for the Advancement of Multijurisdiction Prac. v. Berch, 773 F.3d 1037,
1049 (9th Cir. 2014) (citation omitted).
1. We agree with the district court that Appellants failed to adequately
plead standing. Appellants failed to demonstrate (1) “an injury in fact,” (2) that is
“concrete and particularized . . . and [] actual or imminent, [but] not conjectural or
hypothetical,” (3) “fairly traceable to the challenged action of the defendant[s],”
which (4) “likely . . . will be redressed by a favorable decision.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992) (citations, alterations, and internal quotation
1
Appellants’ FAVC became the operative complaint after the district court struck
Appellants’ Revised First Amended Verified Complaint, and affirmed the
magistrate judge’s denial with prejudice of Appellants’ third motion for leave to
file their Second Amended Verified Complaint.
2
marks omitted). Appellants equivocally alleged that “[t]he investment funds might
have . . . possibly been used by the Fang family to purchase a multiple-million
dollar house in L.A. and an over one million dollar house in Honolulu;” that two
investors “received temporary green cards which potentially will be revoked;” that
“the projects in California are possibly all under the water;” and that “Defendants
misconducts [sic] have caused the subject projects to . . . potentially become
impracticable, impossible, and failed.” These allegations were inadequate to
plausibly allege an injury in fact. See Lopez v. Candaele, 630 F.3d 775, 786 (9th
Cir. 2010), as amended (“The touchstone for determining injury in fact is whether
the plaintiff has suffered an injury or threat of injury that is credible, not imaginary
or speculative.”) (citation and internal quotation marks omitted); see also Nasby v.
Nevada, 79 F.4th 1052, 1056 (9th Cir. 2023) (“Standing requires, as relevant here,
an injury in fact . . .”) (citation and internal quotation marks omitted). Moreover,
as the district court correctly explained, in their prolix complaint, “Plaintiffs
provide no information about their individuals roles or how they were harmed by
Defendants.”
2. Appellants received six opportunities to cure deficiencies in their
SAVC. We have consistently affirmed a denial of leave to amend when
Appellants were provided multiple chances to correct pleading defects. See
Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1060 n.4, 1072
3
(9th Cir. 2008), as amended (concluding that the district court did not abuse its
discretion when prior amendments failed to cure deficiencies in the complaint).
3. The district court did not err by declining to review the exhibits
attached to Appellants’ objection to the Magistrate Judge’s order denying leave to
amend. Under our precedent, “a district court has discretion, but is not required, to
consider evidence presented for the first time in a party’s objection to a magistrate
judge’s recommendation.” United States v. Howell, 231 F.3d 615, 621 (9th Cir.
2000).
AFFIRMED.
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