Kirti Mehta v. Victoria Partners

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 23, 2024
• Docket: 23-15244
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KIRTI MEHTA, No. 23-15244

Plaintiff-Appellant, D.C. No. 2:21-cv-01493-CDS-VCF

v. MEMORANDUM* VICTORIA PARTNERS, doing business as Park-Mgm Casino & Hotel Operator; ANN HOFF; LONDON SWINNEY; MGM INTERNATIONAL; BILL HORNBUCKER; TERRENCE LANNI; JOSEPH A. CARBO, Jr.; RYAN GUADIZ; PAUL SALEM; TRAVIS LUNN; NIKLAS RYTTERSTROM; BRANDON DARDEAU; CLIVE HAWKINS; CHUCK BOWLING; ANTON NIKODEMUS,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Cristina D. Silva, District Judge, Presiding

Submitted September 17, 2024**

Before: WARDLAW, BADE, and H.A. THOMAS, 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). Kirti Mehta appeals pro se from the district court’s judgment dismissing his

action alleging various federal and state law claims. We have jurisdiction under 28

U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil

Procedure 12(b)(6). Puri v. Khalsa, 844 F.3d 1152, 1157 (9th Cir. 2017). We

affirm.

The district court properly dismissed Mehta’s claims against defendants Park

MGM, LLC, Ann Hoff, London Swinney, William Hornbuckle, Joseph Corbo, Jr.,

and Ryan Gaurdiz because Mehta failed to allege facts sufficient to state any

plausible claim against them. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (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” (citation and internal

quotation marks omitted)); Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 221

P.3d 1276, 1280-81 (Nev. 2009) (setting forth elements of a negligence claim in

Nevada); Rodriguez v. Primadonna Co., LLC, 216 P.3d 793, 798 (Nev. 2009)

(explaining that commercial liquor vendors cannot be held liable for damages

related to any injuries caused and sustained by the intoxicated patron in Nevada);

Bulbman, Inc. v. Nevada Bell, 825 P.2d 588, 592 (Nev. 1992) (setting forth

elements of a fraud claim); Sports Form, Inc. v. Leroy’s Horse & Sports Place, 823

P.2d 901, 904 (Nev. 1992) (explaining that no private cause of action exists under

Chapter 463 of the Nevada Revised Statutes).

2 23-15244 The district court did not abuse its discretion by dismissing Mehta’s claims

against the remaining defendants because Mehta failed to obtain a waiver or

provide proof of service to the district court in accordance with Fed. R. Civ. P.

4(d), and otherwise failed to show good cause for failure to serve the summons and

complaint in a timely manner, despite being given notice and an opportunity to do

so. See Fed. R. Civ. P. 4(a)-(c) (setting forth requirements for service of process);

Fed. R. Civ. P. 4(d) (setting forth requirements for waiver of service); Fed. R. Civ.

P. 4(m) (explaining that district court must dismiss for failure to serve after

providing notice and absent of a showing of good cause for failure to serve);

Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 511 (9th Cir. 2001) (setting forth

standard of review).

The district court did not abuse its discretion by denying Mehta leave to file

a second amended complaint because amendment would have been futile. See

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)

(setting forth standard of review and explaining that leave to amend may be denied

when amendment would be futile); Metzler Inv. GMBH v. Corinthian Colls., Inc.,

540 F.3d 1049, 1072 (9th Cir. 2008) (explaining that “the district court’s discretion

to deny leave to amend is particularly broad where plaintiff has previously

amended the complaint” (citation and internal quotation marks omitted)).

The district court did not abuse its discretion by granting reduced attorney’s

3 23-15244 fees for Park MGM because the release agreement expressly provided for such an

award. See CRST Van Expedited, Inc. v. Werner Enterprises, Inc., 479 F.3d 1099,

1104 (9th Cir. 2007) (setting forth standard of review); Davis v. Beling, 278 P.3d

501, 515 (Nev. 2012) (explaining that, under Nevada law, attorney’s fees may be

awarded if the parties provided for such fees by express contractual provisions).

Contrary to Mehta’s contention, the district court retained jurisdiction to rule on

defendants’ motion for attorney’s fees. See Masalosalo v. Stonewall Ins. Co., 718

F.2d 955, 956-57 (9th Cir. 1983) (the district court retains jurisdiction to award

attorney’s fees after a notice of appeal from the decision on the merits has been

filed).

We reject as meritless Mehta’s contention that the district court was biased

against him.

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Appellees’ request for costs, set forth in the supplemental answering brief, is

denied without prejudice to the filing of a bill of costs. All other pending motions

and requests are denied.

AFFIRMED.

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