NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW JOHNSON; et al., No. 17-56783
Plaintiffs-Appellants, D.C. No.
2:15-cv-09183-ODW-AS
v.
CHRISTOPHER ALLEGRETTI; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted October 2, 2019**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Matthew Johnson, Nathan Johnson, Gemini Partners, Inc., and Alacrity
Capital Offshore Fund, Ltd. appeal the district court’s judgment on the pleadings
for Christopher Allegretti and Hill Barth & King LLC (“HBK”) in plaintiffs’
diversity action alleging fraud in a financial services agreement. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Daewoo Elecs. Am. Inc.
v. Opta Corp., 875 F.3d 1241, 1246 (9th Cir. 2017). We affirm.
The district court properly granted judgment on the pleadings because
plaintiffs failed to meet the heightened pleading requirement of Federal Rule of
Civil Procedure 9(b). See Fed. R. Civ. P. 9(b); Swartz v. KPMG LLP, 476 F.3d
756, 764 (9th Cir. 2007) (per curiam) (“[W]here a complaint includes allegations
of fraud, Federal Rule of Civil Procedure 9(b) requires more specificity including
an account of the ‘time, place, and specific content of the false representations as
well as the identities of the parties to the misrepresentations.’” (citation omitted)).
Because many of plaintiffs’ allegations lump Allegretti and HBK with other
defendants, it is not clear which defendant allegedly made which
misrepresentation. See id. at 764-65 (“Rule 9(b) does not allow a complaint to
merely lump multiple defendants together but ‘require[s] plaintiffs to differentiate
their allegations when suing more than one defendant . . . and inform each
defendant separately of the allegations surrounding his alleged participation in the
fraud.’” (citation omitted; alterations in original)). Moreover, a “Term Sheet”
referenced in the Second Amended Complaint shows that the statements Allegretti
allegedly made on June 7, 2010, could not have induced plaintiffs to enter into the
agreement, given that they had already consented to the terms of the agreement
before that date.
2
The district court did not abuse its discretion in dismissing without leave to
amend because plaintiffs did not cure the complaint’s deficiencies despite the
district court’s specific instructions about how to do so. See Lopez v. Smith, 203
F.3d 1122, 1130 (9th Cir. 2000) (en banc) (setting forth standard of review and
explaining that leave to amend should be given unless the deficiencies in the
complaint cannot be cured by amendment); see also Fid. Fin. Corp. v. Fed. Home
Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir. 1986) (“The district
court’s discretion to deny leave to amend is particularly broad where the court has
already given the plaintiff an opportunity to amend his complaint.”).
AFFIRMED.
3
Matthew Johnson v. Christopher Allegretti
Combined Opinion