Nancy Sussman v. San Diego Police Department ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NANCY SUSSMAN; MICHAEL No. 19-56329
SUSSMAN, Estate thereof by and thru his
special administer for the estate, D.C. No. 3:19-cv-01063-DMS-JLB
Plaintiffs-Appellants,
MEMORANDUM*
v.
SAN DIEGO POLICE DEPARTMENT; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Nancy Sussman appeals pro se from the district court’s judgment dismissing
her 42 U.S.C. § 1983 action arising out of the arrest and criminal prosecution of
her son, decedent Michael Sussman. We have jurisdiction under 28 U.S.C. § 1291.
*
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).
We review for an abuse of discretion a denial of a motion to amend a complaint.
Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013). We affirm.
Sussman failed to include any argument in her opening brief regarding the
district court’s dismissal of her claims, and thus has waived any challenge to that
issue. See McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009) (arguments
not raised in an appellant’s opening brief are waived).
The district court did not abuse its discretion in denying Sussman leave to
file her proposed third amended complaint because further amendment would have
been futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041
(9th Cir. 2011) (“[A] district court may dismiss without leave where a plaintiff’s
proposed amendments would fail to cure the pleading deficiencies and amendment
would be futile[.]”); see also Gonzalez v. Planned Parenthood of L.A., 759 F.3d
1112, 1116 (9th Cir. 2014) (“[T]he district court's discretion in denying
amendment is particularly broad when it has previously given leave to amend”
(citation and internal quotation marks omitted[.])).
Contrary to Sussman’s contentions, Sussman was required to seek leave of
court to file a third amended complaint because she had already amended her
complaint once as a matter of course. See Eminence Cap., LLC v. Aspeon, Inc.,
316 F.3d 1048, 1051 (9th Cir. 2003) (“After a party has amended a pleading once
as a matter of course, it may only amend further after obtaining leave of the court,
2 19-56329
or by consent of the adverse party.” (citing Fed. R. Civ. P.15(a))).
We reject as meritless Sussman’s contentions that the district judge
committed judicial misconduct and erred by dismissing without oral argument, and
that the motions to dismiss were moot upon her filing her proposed third amended
complaint.
All pending motions and requests are denied.
AFFIRMED.
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