FILED
NOT FOR PUBLICATION FEB 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
INFUTURIA GLOBAL LTD., No. 09-16378
Plaintiff - Appellant, D.C. No. 4:08-cv-04871-SBA
v.
MEMORANDUM*
SEQUUS PHARMACEUTICALS, INC.;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued August 31, 2010
Submitted January 31, 2011
Pocatello, Idaho
Before: BYBEE, TYMKOVICH,** and N.R. SMITH, Circuit Judges.
Infuturia Global Ltd. (“Infuturia”) appeals the district court’s order
dismissing its Second Amended Complaint under Federal Rules of Civil Procedure
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable Timothy M. Tymkovich, United States Circuit Judge for the Tenth
Circuit, sitting by designation.
12(b)(6) and 12(b)(7). This court has jurisdiction pursuant to 28 U.S.C. § 1291.
We affirm.
The district court did not err in dismissing this case under Federal Rule of
Civil Procedure 12(b)(6), because Infuturia did not allege sufficient facts “to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). On the tortious interference claim, Infuturia failed to allege
damages stemming from Sequus’s conduct, which is one of the required elements
of a tortious interference claim under California law. See Pac. Gas & Elec. Co. v.
Bear Sterns & Co., 50 Cal. 3d 1118, 1126 (Cal. 1990). Finding the First Amended
Complaint deficient, the district court ordered Infuturia to identify “the Sequus
products—particular compounds, pharmaceutical compositions, improvements,
developments, inventions, etc.—that allegedly fall within the scope of Infuturia’s
purported contractual rights . . . .” Although Infuturia’s Second Amended
Complaint refers generally to lost profits, it failed to identify any particular
product, compound, or invention that causes Infuturia to lose profits and royalties.
Similarly, on the conversion claim, Infuturia failed to explain how Sequus
perpetrated an “act of dominion wrongfully asserted over [Infuturia]’s personal
property in denial of or inconsistent with [its] rights therein.” In re Bailey, 197
F.3d 997, 1000 (9th Cir. 1999) (citation and quotation marks omitted). As with the
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tortious interference claim, Infuturia did not identify a particular product,
compound, or invention from Sequus that interfered with Infuturia’s licensing
rights to certain Yissum patents.
Finally, the district court did not abuse its discretion by denying Infuturia’s
claims with prejudice. Leave to amend “need not be granted where the amendment
of the complaint would cause the opposing party undue prejudice, is sought in bad
faith, constitutes an exercise in futility, or creates undue delay.” Ascon Props., Inc.
v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (citation omitted). “The
district court’s discretion to deny leave to amend is particularly broad where
plaintiff has previously amended the complaint.” Id. (citation omitted). Here,
Infuturia had two opportunities to amend its complaint. Notwithstanding the
district court’s specific instructions regarding the prior complaints’ deficiencies,
Infuturia’s Second Amended Complaint failed to make out a plausible claim.
Finally, we GRANT Infuturia’s Motion to Take Judicial Notice in Support
of Supplemental Brief of Appellant, Docket No. 33.
AFFIRMED.
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