Opinion
20-56397
11-08-2022
TRISTRAM T. BUCKLEY, Plaintiff-Appellant, v. BMW OF NORTH AMERICA; et al., Defendants-Appellees.
NOT FOR PUBLICATION
Submitted October 19, 2022 Pasadena, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court No. 2:19-cv-01255-MWF-SS for the Central District of California Michael W. Fitzgerald, District Judge, Presiding
Before: KLEINFELD, CHRISTEN, and BUMATAY, Circuit Judges.
MEMORANDUM
First, we address jurisdiction. BMW NA argues that we lack jurisdiction to determine whether the district court's denial of Buckley's Fed.R.Civ.P. 60(b) motion was proper. Although Rule 60(b) denial orders are normally separately appealable, the finality of the denial stems from the finality of the underlying judgment. In re Mason, 709 F.2d 1313, 1315 (9th Cir. 1983). When Buckley first appealed the Rule 60(b) denial, we lacked jurisdiction to hear the case because the underlying dismissal was not yet final, since other defendants in the lawsuit remained. Now that the district court has dismissed the claims against the other defendants, Buckley's current appeal "draws in question all earlier, non-final orders and rulings which produced the judgment," including denial of the Rule 60(b) motion, so we have jurisdiction. Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th Cir. 1984).
Whether the denial of a Rule 60(b) motion was proper on the merits is reviewed for abuse of discretion. Pizzuto v. Ramirez, 783 F.3d 1171, 1175 (9th Cir. 2015). The district court did not abuse its discretion in denying Buckley's Rule 60(b) motion.
Rule 60(b)(1) allows relief where "mistake, inadvertence, surprise, or excusable neglect" led to the final order. Fed.R.Civ.P. 60(b)(1). In this case, such circumstances are not present-the district court carefully analyzed the record when it dismissed Buckley's complaint and Buckley's arguments amounted to no more than disagreement with its decision. See Lemoge v. United States, 587 F.3d 1188, 1192-99 (9th Cir. 2009). Nor did it abuse its discretion in denying Buckley's Rule 60(b)(2) and (3) arguments, because Buckley could have discovered the allegedly new evidence of fraud earlier through due diligence. See Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003); Casey v. Albertson's, Inc., 362 F.3d 1254, 1260 (9th Cir. 2004). Finally, the district court did not abuse its discretion in finding that none of Buckley's arguments sufficed to prove the "extraordinary circumstances" Rule 60(b)(6) requires. Lal v. California, 610 F.3d 518, 524 (9th Cir. 2010) (internal quotations omitted).
Turning to the merits of the underlying dismissal of the Third Amended Complaint, Buckley failed to plead the fraud claims with sufficient particularity. Fed.R.Civ.P. 9(b); see In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc), superseded by statute on other grounds, Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4(b)(1) . BMW NA was entitled to sufficient information in the complaint to allow it to identify the customer representative or representatives who talked to Buckley in the alleged telephone calls and determine what they said to him. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) ("Averments of fraud must be accompanied by "the who, what, when, where, and how" of the misconduct charged."). We recognize, as Buckley points out, that defense counsel made unverified representations about BMW NA's ability to retrieve Buckley's phone calls, and the district court cited these representations in its order dismissing Buckley's case. But our review is confined to the allegations in Buckley's complaint or attachments and documents incorporated by reference. Koala v. Khosla, 931 F.3d 887, 894 (9th Cir. 2019). And on de novo review, we conclude Buckley's complaint lacks key identifying information about his calls, such as whether he spoke to one or more representatives, the call's precise date, or his car's Vehicle Identification Number (VIN).
Buckley is correct that Rule 9 does not require him to plead facts that are "peculiarly within the opposing party's knowledge, and allegations based on information and belief may suffice, so long as the allegations are accompanied by a statement of facts upon which the belief is founded." Nayab v. Cap. One Bank (USA), N.A., 942 F.3d 480, 493-94 (9th Cir. 2019). But Buckley's complaint does not allege any facts supporting his belief that BMW NA could locate the customer representative who spoke to him.
We affirm the district court's determination that the challenged statements in BMW's advertisements were not actionable. Much of the language Buckley quotes, such as the car being "strong" and "durable" or how the buyer will feel "the rush of the wind" and the "pounding of the human heart" in an "uncompromising masterpiece in sculpted aluminum," are puffery that the district court correctly ruled is not actionable. See Glen Holly Ent., Inc. v. Tektronix, Inc., 352 F.3d 367, 379 (9th Cir. 2003).
The district court also did not abuse its discretion in dismissing the complaint without leave to amend. Buckley's repeated failure to satisfy the requirements of the Federal Rules of Civil Procedure indicated that further amendment would likely be futile, so it was not an abuse of discretion for the district court to dismiss the claims without leave to amend. See Rutman Wine Co. v. E &J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987). The court had tried to instruct Buckley, an attorney, on how to submit an acceptable pleading, detailing the various issues in the Corrected Second Amended Complaint, and Buckley still failed to do so.
The district court also did not abuse its discretion in dismissing claims Buckley raised for the first time in his Third Amended Complaint. See Yourish v. California Amplifier, 191 F.3d 983, 986 (9th Cir. 1999) (dismissing a complaint for failure to comply with a court order). The district court had already warned Buckley to only revise claims he had already made in his Corrected Second Amended Complaint. See Fed.R.Civ.P. 15(a) (explaining that a party may amend its pleading "only with the opposing party's consent or the court's leave"). Where "the very prolixity of the complaint [makes] it difficult to determine just what circumstances were supposed to have given rise to the various causes of action," the very purpose of the complaint, to let the defendant know what they are being accused of, is befuddled. See McHenry v. Renne, 84 F.3d 1172, 1178-79 (9th Cir. 1996). In the highly specific context of Buckley's many, varied, and complex pleadings, the district court's demand that Buckley limit his Third Amended Complaint to the allegations that had been in his Corrected Second Amended Complaint was not an abuse of discretion considering Buckley's prolix style.
AFFIRMED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).