Ye Jiang v. Zhong Fang

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 28, 2023
• Docket: 21-16292
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.