FILED
NOT FOR PUBLICATION
FEB 11 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHANIE PATTON; No. 18-56336
KENDRICK KNIGHTEN,
D.C. No.
Plaintiffs-Appellants, 5:17-cv-00922-MWF-DTB
v. MEMORANDUM*
FOREST LABORATORIES, INC.;
RIVERSIDE COUNTY REGIONAL
MEDICAL CENTER; COUNTY OF
RIVERSIDE; ALLERGAN SALES, LLC;
ALLERGAN, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted January 23, 2020
Pasadena, California
Before: CLIFTON and LEE, Circuit Judges, and BLOCK,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
Plaintiffs-Appellants appeal the district court’s dismissal of their California
state common law and statutory claims against the manufacturers of Lexapro, an
antidepressant drug. We affirm.
Dismissal under Fed. R. Civ. P. 12(b)(6) is proper when “the complaint
either (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to
support a cognizable legal theory.” Somers v. Apple, Inc., 729 F.3d 953, 959 (9th
Cir. 2013). “To survive a 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)). We review a dismissal pursuant to Rule
12(b)(6) de novo. See, e.g., Dougherty v. City of Covina, 654 F.3d 892, 897 (9th
Cir. 2011).
First, the plaintiffs brought two counts of negligence. In both counts, they
allege that the defendants were negligent in marketing Lexapro to medical
providers, government agencies, and the public by failing to provide information
about the suicidality risks the drug poses when prescribed to adolescents. In
California, such negligence claims require the plaintiff to prove that a manufacturer
“did not warn of a particular risk for reasons that fell below the acceptable standard
of care.” Carlin v. Superior Court, 13 Cal. 4th 1104, 1106–07, 920 P.2d 1347
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(1996). Here, as mandated by federal law, the drug’s packaging contained clear
warning labels about a heightened risk of suicidality for adolescents. Thus, the
defendants did warn of the particular risk at issue, and the district court correctly
held that plaintiffs have not stated a claim for negligence.
The plaintiffs also alleged that the defendants engaged in fraudulent business
practices under California’s Unfair Competition Law (UCL), Cal. Bus. & Prof.
Code § 17200, by disseminating false advertisements in newspapers and other
publications, as well as by making false public statements. Because the claim is
one of fraud, it is subject to Rule 9(b)’s requirement that the plaintiff “must state
with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P.
9(b). See also Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997) (stating that
parties must plead the “who, what, when, where, and how” of the fraud). The
Second Amended Complaint does not identify the misleading content of the
advertisements or public statements, allege when such statements were made or in
what publications, or offer reasons why the statements were fraudulent. The
district court correctly held plaintiffs’ UCL allegations are pled with inadequate
specificity.
Lastly, the plaintiffs argue that the district court abused its discretion in
denying leave to amend the complaint. Although the Federal Rules of Civil
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Procedure provide that courts should “freely give leave” to amend “when justice so
requires,” Fed. R. Civ. P. 15(a), courts may deny such leave when a party
evidences “repeated failure to cure deficiencies by amendments previously
allowed” and when further attempts to amend would be futile. Zucco Partners,
LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009), as amended (Feb. 10,
2009). Here, the district court permitted plaintiffs to amend their complaint twice
and, in noting that the allegations in the Second Amended Complaint were
substantially similar to those the court had dismissed in the prior complaint,
concluded that further amendment would be futile. The district court did not abuse
its discretion in so ruling.
AFFIRMED.
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