Second Amendment Foundation v. Ferguson

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 26, 2025
• Docket: 24-760
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 26 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SECOND AMENDMENT No. 24-760 FOUNDATION; CITIZENS COMMITTEE D.C. No. FOR THE RIGHT TO KEEP AND BEAR 2:23-cv-01554-MJP ARMS; LIBERTY PARK PRESS; MERRIL MAIL MARKETING; CENTER FOR THE MEMORANDUM* DEFENSE OF FREE ENTERPRISE; SERVICE BUREAU ASSOCIATION; ALAN GOTTLIEB,

Plaintiffs - Appellants,

v.

ROBERT FERGUSON, as Washington Attorney General; JOSHUA STUDOR, as Washington Assistant Attorney General; WASHINGTON OFFICE OF THE ATTORNEY GENERAL; JOHN DOES, 1- 10,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, District Judge, Presiding

Argued and Submitted May 22, 2025 Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: GOULD, TALLMAN, and CHRISTEN, Circuit Judges.

Plaintiffs appeal the district court’s order granting Defendants’ motion to

dismiss for lack of ripeness and the district court’s denial of leave to amend.1 We

review a dismissal on ripeness grounds de novo, 50 Exch. Terrace LLC v. Mount

Vernon Specialty Ins. Co., 129 F.4th 1186, 1187 (9th Cir. 2025), and a denial of

leave to amend for abuse of discretion, Cervantes v. Countrywide Home Loans,

Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). We have jurisdiction pursuant to 28

U.S.C. § 1291. We affirm in part, reverse in part, and remand.

1. Constitutional ripeness overlaps with the injury-in-fact analysis for

Article III standing. Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010).

Here, Plaintiffs failed to adequately allege a cognizable injury. Plaintiffs did not

suffer a forced diversion of resources that chilled their speech because the Civil

Investigative Demands (CIDs), absent a petition to enforce, did not compel

Plaintiffs to expend time and money responding to them. See Wash. Rev. Code

§ 19.86.110(8)-(9) (establishing a deadline to file a petition to extend, modify, or

set aside a CID for good cause and a separate procedure for initiating enforcement

proceedings); Wash. CR 37(a)(4) (providing for only a discretionary award of

1 Because the parties are familiar with the facts, we do not recount them here.

2 24-760 expenses to the prevailing party on a motion to compel).2 Plaintiffs’ voluntary

compliance with the CIDs does not constitute a cognizable injury. See Twitter,

Inc. v. Paxton, 56 F.4th 1170, 1175-76 (9th Cir. 2022). Plaintiffs’ allegations

concerning compelled disclosure of documents and information, operational

disruption, damaged reputation, and emotional harm also do not establish injury

because they are vague and conjectural. See Susan B. Anthony List v. Driehaus,

573 U.S. 149, 158 (2014).3

2. Pursuant to Federal Rule of Civil Procedure 15(a), leave to amend “shall

be freely given when justice so requires.” Carvalho v. Equifax Info. Servs., LLC,

629 F.3d 876, 892 (9th Cir. 2010). Accordingly, “it is black-letter law that a

district court must give plaintiffs at least one chance to amend a deficient

complaint.” Barke v. Banks, 25 F.4th 714, 721 (9th Cir. 2022) (per curiam)

(alterations and citation omitted). This “presumption can be overcome,” however,

“where there has been ‘a clear showing that amendment would be futile.’” Id.

(citation omitted). A district court may “exercise its discretion to deny leave to

amend” on several grounds, including futility, but “a simple denial of leave to

2 Defendants expressly concede that CID recipients may raise constitutional objections during an enforcement action, even if those objections were not timely raised under Wash. Rev. Code § 19.86.110(8). 3 Because we conclude that Plaintiffs failed to establish constitutional ripeness, we need not address the district court’s alternative ruling on prudential ripeness.

3 24-760 amend without any explanation by the district court is subject to reversal.” Nat’l

Council of La Raza v. Cegavske, 800 F.3d 1032, 1045 (9th Cir. 2015) (alterations

and citations omitted).

La Raza and the cases upon which it relied found abuses of discretion based

on the lack of adequate explanation where district courts denied leave to amend

with prejudice, but we believe that the same rationale applies here. Plaintiffs

sought leave to amend the complaint in response to Defendants’ motion to dismiss.

The district court dismissed Plaintiffs’ claims without prejudice for lack of subject-

matter jurisdiction and entered judgment the same day. The order contains no

discussion of leave to amend. Under these circumstances, dismissal without

prejudice ended the case because the district court allowed no opportunity to

amend. See Unified Data Servs., LLC v. FTC, 39 F.4th 1200, 1206-07 (9th Cir.

2022).

Even if we were to conclude that it is “apparent from the record” the district

court determined amendment would be futile with respect to Plaintiffs’ allegations

of injury concerning chilled speech, see Levald, Inc. v. City of Palm Desert, 998

F.2d 680, 691-92 (9th Cir. 1993), the record suggests the contrary at least as to

Plaintiffs’ allegations concerning damaged reputation, operational disruption, and

emotional injury. For those theories of injury, the district court found that

Plaintiffs’ allegations were conclusory, vague, and lacking in sufficient detail. The

4 24-760 district court did not explain, nor is it apparent from the record, why such

infirmities could not be cured by amendment. Because the district court denied

leave to amend and failed to explain why it did so, we apply the reasoning of La

Raza to hold that the denial of leave to amend here was an abuse of discretion. See

Nat’l Council of La Raza, 800 F.3d at 1045.

3. We next consider the district court’s decision to dismiss the action, rather

than remand it to state court. “[I]f at any time before final judgment it appears that

the district court lacks subject matter jurisdiction” over a case that was removed to

federal court, “the case shall be remanded.” Polo v. Innoventions Int’l, LLC, 833

F.3d 1193, 1196 (9th Cir. 2016) (quoting 28 U.S.C. § 1447(c)). Accordingly, if the

district court ultimately determines on remand that it lacks subject matter

jurisdiction, it must remand this matter to state court.4

AFFIRMED in part, REVERSED in part, and REMANDED.5

4 The district court did not remand the action and therefore did not assess the propriety of an award of costs and expenses under § 1447(c). We therefore decline to consider this issue. 5 The parties shall bear their own costs.

5 24-760