Matthew Johnson v. Christopher Allegretti

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 4, 2019
• Docket: 17-56783
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 4 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MATTHEW JOHNSON; et al., No. 17-56783

Plaintiffs-Appellants, D.C. No. 2:15-cv-09183-ODW-AS v.

CHRISTOPHER ALLEGRETTI; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Submitted October 2, 2019**

Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.

Matthew Johnson, Nathan Johnson, Gemini Partners, Inc., and Alacrity

Capital Offshore Fund, Ltd. appeal the district court’s judgment on the pleadings

for Christopher Allegretti and Hill Barth & King LLC (“HBK”) in plaintiffs’

diversity action alleging fraud in a financial services agreement. We have

* 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). jurisdiction under 28 U.S.C. § 1291. We review de novo. Daewoo Elecs. Am. Inc.

v. Opta Corp., 875 F.3d 1241, 1246 (9th Cir. 2017). We affirm.

The district court properly granted judgment on the pleadings because

plaintiffs failed to meet the heightened pleading requirement of Federal Rule of

Civil Procedure 9(b). See Fed. R. Civ. P. 9(b); Swartz v. KPMG LLP, 476 F.3d

756, 764 (9th Cir. 2007) (per curiam) (“[W]here a complaint includes allegations

of fraud, Federal Rule of Civil Procedure 9(b) requires more specificity including

an account of the ‘time, place, and specific content of the false representations as

well as the identities of the parties to the misrepresentations.’” (citation omitted)).

Because many of plaintiffs’ allegations lump Allegretti and HBK with other

defendants, it is not clear which defendant allegedly made which

misrepresentation. See id. at 764-65 (“Rule 9(b) does not allow a complaint to

merely lump multiple defendants together but ‘require[s] plaintiffs to differentiate

their allegations when suing more than one defendant . . . and inform each

defendant separately of the allegations surrounding his alleged participation in the

fraud.’” (citation omitted; alterations in original)). Moreover, a “Term Sheet”

referenced in the Second Amended Complaint shows that the statements Allegretti

allegedly made on June 7, 2010, could not have induced plaintiffs to enter into the

agreement, given that they had already consented to the terms of the agreement

before that date.

2 The district court did not abuse its discretion in dismissing without leave to

amend because plaintiffs did not cure the complaint’s deficiencies despite the

district court’s specific instructions about how to do so. See Lopez v. Smith, 203

F.3d 1122, 1130 (9th Cir. 2000) (en banc) (setting forth standard of review and

explaining that leave to amend should be given unless the deficiencies in the

complaint cannot be cured by amendment); see also Fid. Fin. Corp. v. Fed. Home

Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir. 1986) (“The district

court’s discretion to deny leave to amend is particularly broad where the court has

already given the plaintiff an opportunity to amend his complaint.”).

AFFIRMED.