Robert Caruso v. Washington State Bar Associati

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2018
• Docket: 17-35410
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT E. CARUSO; SANDRA L. No. 17-35410 FERGUSON, Esquire, D.C. No. 2:17-cv-00003-RSM Plaintiffs-Appellants,

v. MEMORANDUM*

WASHINGTON STATE BAR ASSOCIATION 1933, a legislatively created Washington association, State Bar Act (WSBA 1933); et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, Chief Judge, Presiding

Submitted March 13, 2018**

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Robert E. Caruso appeals from the district court’s judgment dismissing his

42 U.S.C. § 1983 action seeking declaratory and injunctive relief. Sandra L.

* 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). Ferguson appeals pro se from the district court’s order denying her motion to

vacate the judgment and to amend the first amended complaint. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal

Rule of Civil Procedure 12(b)(6). Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th

Cir. 2008). We review for an abuse of discretion a denial of a motion under either

Federal Rule of Civil Procedure 59(e) or Rule 60(b). Sch. Dist. No. 1J, Multnomah

Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We affirm.

As to Caruso, the district court properly dismissed the action because he

failed to allege facts sufficient to state a plausible claim. See Ashcroft v. Iqbal, 556

U.S. 662, 678, 681 (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” and conclusory allegations are not entitled to be assumed true) (citation and

internal quotation marks omitted)); Keller v. State Bar of Cal., 496 U.S. 1, 13-14

(1990) (state bar association may constitutionally fund activities germane to the

goals of regulating the legal profession and improving the quality of legal services

out of the mandatory dues of all members); Lathrop v. Donohue, 367 U.S. 820, 843

(1961) (Brennan, J., plurality opinion) (state bar association may constitutionally

require mandatory membership and dues without impinging on protected rights of

association); Rosenthal v. Justices of the Superior Court of Cal., 910 F.2d 561 (9th

Cir. 1990) (“The lawyer subject to discipline is entitled to procedural due process,

2 17-35410 including notice and an opportunity to be heard.” (citing In re Ruffalo, 390 U.S.

544, 550 (1968))); see also Wash. Rev. Code § 2.48.050 (2018) (authorizing board

of governors of the Washington State Bar Association to adopt rules “concerning

membership . . . [and] the enrollment and privileges of membership”).

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

because amendment would have been futile. See Chappel v. Lab. Corp. of Am.,

232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of review and

explaining that “[a] district court acts within its discretion to deny leave to amend

when amendment would be futile”).

We reject as without merit Caruso’s contentions of fraud upon the district

court.

As to Ferguson, we lack jurisdiction to review the district court’s judgment.

After Ferguson voluntarily dismissed her timely appeal of the judgment, her

subsequent Rule 59(e) motion did not toll the time to file an appeal. Thus, her

amended notice of appeal is untimely as to the judgment. See Fed. R. App. P.

4(a)(1)(A), 4(a)(4) (notice of appeal must be filed within 30 days after entry of

judgment or order appealed from; time to file an appeal runs from entry of the

order disposing of timely post-judgment tolling motion); United States v. Arevalo,

408 F.3d 1233, 1236-37 (9th Cir. 2005) (once an appellant voluntarily dismisses

her appeal, this court lacks jurisdiction unless appellant moves to reinstate within

3 17-35410 the time limits for a notice of appeal or seeks an extension of time from the district

court to re-file the notice of appeal); Stephanie-Cardona LLC v. Smith’s Food &

Drug Ctrs., Inc., 476 F.3d 701, 703 (9th Cir. 2007) (“A timely notice of appeal is a

non-waivable jurisdictional requirement.”).

The district court did not abuse its discretion by denying Ferguson’s post-

judgment motion to vacate judgment and amend pleading because Ferguson failed

to demonstrate any basis for relief. See Sch. Dist. No. 1J, 5 F.3d at 1262-63

(grounds for relief under Rule 59 or Rule 60); Lindauer v. Rogers, 91 F.3d 1355,

1357 (9th Cir. 1996) (“[O]nce judgment has been entered in a case, a motion to

amend the complaint can only be entertained if the judgment is first reopened

under a motion brought under Rule 59 or 60.”).

We do not consider matters not specifically and distinctly raised and argued

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

Defendants’ motion to take judicial notice (Docket Entry No. 40) is denied

as unnecessary.

AFFIRMED.

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