FILED
NOT FOR PUBLICATION
APR 11 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
G.O. AMERICA SHIPPING COMPANY, No. 18-35118
INC., a corporation registered in the
Republic of the Marshall Islands, D.C. No. 2:17-cv-00912-MJP
Plaintiff-Appellant,
MEMORANDUM*
v.
CHINA COSCO SHIPPING
CORPORATION LIMITED, a company
registered in the People’s Republic of
China; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Submitted April 8, 2019**
Seattle, Washington
Before: W. FLETCHER, CALLAHAN, and CHRISTEN, 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).
G.O. America Shipping Company, Inc. (“G.O.”) owns a vessel that needed
some repairs. In February 2016, the vessel docked at facilities in Shanghai, China
operated by China Shipping Industry (“Shanghai Changxing”). G.O. alleges that
the amount demanded by Shanghai Changxing for repairs has increased several
fold and G.O. still has not managed to get the vessel released. G.O. commenced
this action in the United States District Court for the Western District of
Washington by filing a request for a maritime writ of attachment on three vessels
owned by “COSCO” corporations that docked, or were scheduled to dock, within
the Western District. Although the district court initially issued a writ, it later
dismissed the action holding that G.O. had failed to make sufficient factual
allegations to support its claim that the COSCO corporations that owned the
vessels were the alter egos of Shanghai Changxing. The court also awarded
defendants $90,000 in costs. G.O. appeals challenging both the dismissal and the
award of costs. We affirm the dismissal, but vacate the award of costs.
1. G.O. has not shown that the district court erred in dismissing the action
for failing to allege facts supporting a plausible alter ego claim. G.O. does not
deny that the vessels it sought to attach are owned by COSCO Shipping Lines Co.,
Ltd. (“CSL”) or subsidiaries of CSL. We have held that corporate separateness is
to be respected and that piercing the corporate veil “requires that the controlling
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corporate entity exercise total domination of the subservient corporation, to the
extent that the subservient corporation manifests no separate corporate interests of
its own.” Chan v. Soc’y Expeditions, Inc., 123 F.3d 1287, 1294 (9th Cir. 1997)
(quoting Kilkenny v. Arco Marine, Inc., 800 F.2d 853, 859 (9th Cir. 1986)). To
survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). G.O.’s Second Amended
Complaint does not contain any factual allegations that would support a
determination that CSL, a subsidiary of China COSCO Shipping Corporation
Limited (“CCSCL”) in its shipping business cluster, is the alter ego of Shanghai
Changxing, which is a subsidiary of CCSCL in its industrial business cluster.
2. G.O. has not shown that the district court abused its discretion by
dismissing certain defendants with prejudice.1 A denial of leave to amend is
reviewed for abuse of discretion. Wilson v. Lynch, 835 F.3d 1083, 1090 (9th Cir.
2016). Dismissal without leave to amend is appropriate “where a plaintiff’s
proposed amendments would fail to cure the pleading deficiencies and amendment
1
The district court, in response to G.O.’s motion for reconsideration
changed the dismissal of Shanghai Changxing to without prejudice.
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would be futile.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,
1041 (9th Cir. 2011). The factual allegations in the Second Amended Complaint
are inadequate to support alter ego claims against the moving defendants, and G.O.
has not proffered any additional factual allegations that might support alter ego
claims against any of the other shipping defendants. Accordingly, the district court
did not abuse its discretion in dismissing all the shipping defendants with
prejudice.
3. Our decision in Bunker Holdings Ltd. v. Yang Ming Liberia Corp., 906
F.3d 843, 847 (9th Cir. 2018), requires that we vacate the award of $90,000 as the
cost of obtaining a bond to secure the release of the attached vessel. In Bunker
Holdings, we held that a costs award made under the Western District’s Local Rule
54(d)(3)(B) was invalid because federal “courts may not award costs beyond those
mentioned in 28 U.S.C. § 1920 unless another federal statute authorizes them to do
so,” and “[p]remiums paid on undertakings or bonds are not included among the
six categories of taxable costs mentioned in § 1920.” Id. We are bound by Bunker
Holdings. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).
The district court’s dismissal of this action is affirmed, but the award of
costs is vacated. Each side shall bear its own costs.
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