NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 3 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KOFI OBENG-AMPONSAH, No. 17-55563
Plaintiff-Appellant, D.C. No. 5:16-cv-01054-R-AFM
v.
MEMORANDUM*
DON MIGUEL APARTMENTS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted November 27, 2018**
Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.
Kofi Obeng-Amponsah appeals pro se from the district court’s orders
dismissing his action alleging federal and state law claims. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo dismissals under Fed. R. Civ. P.
12(b)(6) and based on the Noerr–Pennington doctrine. Kearney v. Foley &
*
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).
Lardner, LLP, 590 F.3d 638, 643 (9th Cir. 2009). We vacate and remand.
The district court determined that defendants (other than defendant
Genovese) were immune from liability under the Noerr–Pennington doctrine
because “all of Plaintiff’s claims are based on allegations in connection with, and
related to, [an] unlawful detainer action [against Obeng-Amponsah].” However,
the district court’s dismissal under the Noerr–Pennington doctrine was erroneous
because Obeng-Amponsah alleges wrongful conduct, including discrimination and
retaliation, that is distinct from defendants’ litigation activity. See Sosa v.
DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006) (under the Noerr–Pennington
doctrine, “those who petition any department of the government for redress are
generally immune from statutory liability for their petitioning conduct”). For the
same reason, the district court erred by denying Obeng-Amponsah’s motion for
leave to file a second amended complaint solely on the basis that he had not
alleged facts showing that the Noerr–Pennington doctrine did not apply. We
therefore vacate the district court’s January 6, 2017 order dismissing under the
Noerr–Pennington doctrine and denying Obeng-Amponsah’s motion for leave to
amend.
With respect to defendant Genovese, the district court erred by dismissing
for failure to state a claim without first providing Obeng-Amponsah with notice of
the deficiencies as to his specific claims and without considering whether Obeng-
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Amponsah could allege additional facts in support of his claims. See Lopez v.
Smith, 203 F.3d 1122, 1127, 1130 (9th Cir. 2000) (en banc) (standard of review; “a
district court should grant leave to amend even if no request to amend the pleading
was made, unless it determines that the pleading could not possibly be cured by the
allegation of other facts.” (citation and internal quotation marks omitted)); Lucas v.
Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely clear that
no amendment can cure the defect, [ ] a pro se litigant is entitled to notice of the
complaint’s deficiencies and an opportunity to amend prior to dismissal of the
action.”). We therefore vacate the district court’s April 3, 2017 order dismissing
defendant Genovese for failure to state a claim.
On remand, the district could should consider in the first instance
defendants’ other arguments for dismissal and against leave to amend in the first
instance, and, if appropriate, grant Obeng-Amponsah an opportunity to amend his
complaint.
Appellees shall bear the costs on appeal.
VACATED and REMANDED.
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