FILED
NOT FOR PUBLICATION MAY 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT E. WALCHLI; RACHELLE No. 10-35560
J. WALCHLI,
D.C. No. 3:09-cv-00359-AC
Plaintiffs - Appellants,
v. MEMORANDUM *
COMMUNITY BANK, an Oregon
corporation, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted May 3, 2011 **
Portland, Oregon
Before: KOZINSKI, Chief Judge, TASHIMA and IKUTA, Circuit Judges.
Because the Walchlis didn’t appeal the district court’s dismissal of their
RICO claim based on the Release Agreement, this claim is waived. See
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 2
Rodriguez v. Hayes, 591 F.3d 1105, 1118 n.6 (9th Cir. 2010) (“[F]ailure of a party
in its opening brief to challenge an alternate ground for a district court’s ruling
given by the district court waives that challenge.” (emphasis omitted)). Even if
Community Bank’s discussion of the Release Agreement in its answering brief
could be considered a “waiver of waiver,” we wouldn’t exercise discretion to
review this claim because the Walchlis didn’t file a reply brief, and so never
objected to the district court’s dismissal on this ground. See Singh v. Ashcroft,
361 F.3d 1152, 1157 n.3 (9th Cir. 2004); cf. Han v. Stanford Univ., 210 F.3d 1038,
1040 (9th Cir. 2000).
Moreover, the district court rightly held that the Walchlis’ third amended
complaint failed to allege a plausible scheme to defraud, which is necessary to
establish the predicate acts of racketeering activity alleged in this case. See 18
U.S.C. §§ 1341, 1343, 1961(1); see also Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949–50 (2009); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393,
1400–01 (9th Cir. 1986).
AFFIRMED.