Gallagher v. Roberts et al

Filing 16

ORDER granting 10 Motion to Dismiss. The Court grants Plaintiff leave to file an amended complaint within twenty-one (21) days of the signature date of this Order. Signed by Judge Roger T. Benitez on 4/11/2017. (fth)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELAINE GALLAGHER, Case No.: 3:16-cv-01437-BEN-DHB Plaintiff, 12 13 v. 14 ORDER GRANTING MOTION TO DISMISS TIMOTHY ROBERTS, an individual; PANAMA REAL ESTATE VENTURES, INC., a corporation; PANAMA REAL ESTATE VENTURES, LLC, a Delaware Limited Liability Company; PANAMA REAL ESTATE FUND NO. 2, LLC, a Delaware Limited Liability Company; MICHAEL GALLAGHER and DOES 130, inclusive, 15 16 17 18 19 20 Defendants. 21 Now before the Court is a motion to dismiss brought by Defendants Timothy 22 23 Roberts, Panama Real Estate Ventures, Inc., and Panama Real Estate Fund No. 2, LLC.1 24 25 26 27 28 1 Two Defendants do not join the motion to dismiss: Michael Gallagher and Panama Real Estate Ventures, LLC. Michael Gallagher is added only as a necessary party because he has an interest in the outcome of this litigation. (Compl. ¶ 6.) Michael Gallagher has not responded to the Complaint. Defendant Panama Real Estate Ventures, 1 3:16-cv-01437-BEN-DHB 1 (Mot., ECF No. 10.) Plaintiff opposed. (Opp’n, ECF No. 13.) For the reasons stated 2 below, the Court GRANTS the motion to dismiss. 3 BACKGROUND2 4 Plaintiff Elaine Gallagher (“Plaintiff” or “Elaine Gallagher”) and her former 5 husband, Michael Gallagher,3 are both real estate sales people. (Compl. ¶¶ 12-13.) In 6 2008, when the Gallaghers were still married, Michael O’Riordan introduced them to 7 Defendant Timothy Roberts. (Id. ¶ 14.) The Gallaghers understood O’Riordan to be a 8 wealthy, successful man, who described Roberts as a “smart investor” and his “best 9 friend.” (Id.) At some point, Roberts met with the Gallaghers and advised them about a 10 real estate investment in Panama. (Id. ¶ 16.) Roberts intended to form an entity that 11 would purchase a large parcel of seaside property in the Republic of Panama (the 12 “Panama Property”). (Id.) Roberts offered the Gallaghers a 25% interest in the entity for 13 cash consideration of $250,000. (Id.) He explained that after escrow closed in three to 14 six months, the Gallaghers would receive a return of 100% of their initial investment and 15 own a 25% interest in the entity. (Id.; see also ¶ 21.) Roberts did not provide the 16 Gallaghers with a business plan or any documentation on the nature, risks, or projected 17 figures of the investment. (Id. ¶ 17.) 18 In late 2009, the Gallaghers agreed to make the investment and entrusted $250,000 19 to Roberts. (Id. ¶ 18.) Elaine Gallagher and Michael Gallagher each have a 50% interest 20 in the investment and its proceeds. (Id. ¶ 19.) The Gallaghers never received any indicia 21 of ownership in the entity, but Roberts represented that their ownership was in Defendant 22 23 24 25 26 27 28 LLC also has not responded to the Complaint. The Complaint fails to state any facts as to Panama Real Estate Ventures, LLC. 2 The Court is not making any findings of fact, but rather, summarizing the relevant allegations of the Complaint for purposes of evaluating Defendants’ Motion to Dismiss. 3 Throughout the Complaint, Plaintiff refers to herself and Michael Gallagher collectively as “the Gallaghers.” Plaintiff uses the term “all Defendants” to refer to all Defendants except Michael Gallagher. This Court will adopt the same terminology in describing the allegations of the Complaint. 2 3:16-cv-01437-BEN-DHB 1 Panama Real Estate Fund No. 2, LLC (“Fund No. 2”). (Id. ¶ 20.) Roberts formed Fund 2 No. 2 in January 25, 2011, more than a year after he received the Gallaghers’ money. 3 (Id.) 4 When the Gallaghers did not receive the return of their initial investment after six 5 months, they began to inquire of Roberts. (Id. ¶ 21.) Roberts assured the Gallaghers that 6 the property purchase would close and blamed title problems, legal issues, and difficult 7 sellers for the delay. (Id.) Beginning in 2010 and continuing to 2016, Roberts provided 8 the Gallaghers with engineering drawings of the proposed development of the land, 9 elevation drawings, and lists of the amenities that would be added to the development. 10 (Id.) In addition to the 25% interest in the Panama Property, Roberts offered the 11 Gallaghers an additional $200,000 payment over and above the return of the original 12 $250,000, a 33% interest in a second property, and an oceanfront lot on the second 13 property. (Id.) Almost five years after the Gallaghers’ investment, Fund No. 2 executed 14 a contract to purchase the Panama Property on August 7, 2015. (Id. ¶ 22.) 15 Plaintiff has repeatedly demanded the return of the $250,000, but her demands 16 have been refused. She now brings suit, alleging four claims for relief. Her first claim 17 for relief alleges a violation of the Securities Act of 1933 against all Defendants. Her 18 second claim for relief seeks an accounting against all Defendants. The third claim for 19 relief seeks rescission of the purchase under California securities law against all 20 Defendants. The fourth claim for relief alleges fraud against Defendant Roberts. 21 Defendants Roberts, Panama Real Estate Ventures, Inc., and Panama Real Estate Fund 22 No. 2, LLC move to dismiss for lack personal jurisdiction pursuant to Federal Rule of 23 Civil Procedure 12(b)(2), for failure to state a claim pursuant to Federal Rule of Civil 24 Procedure 12(b)(6), and for failing to plead fraud with particularity pursuant to Federal 25 Rule of Civil Procedure 9(b). 26 27 28 DISCUSSION I. Personal Jurisdiction Defendants move to dismiss Defendant Panama Real Estate Ventures, Inc. for lack 3 3:16-cv-01437-BEN-DHB 1 of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). Plaintiff 2 alleges that Panama Real Estate Ventures, Inc. is a corporation organized and existing 3 under the laws of the Republic of Panama, but that its principal place of business is the 4 State of California. (Compl. ¶ 3.) Defendants counter that the company is organized and 5 has its principal place of business in Panama, and that it does not have sufficient contacts 6 with the State of California. (Opp’n at 5.) 7 A federal court may only exercise personal jurisdiction where such jurisdiction 8 satisfies both the forum state’s long-arm statute and constitutional principles of due 9 process. Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001). Because 10 California’s long-arm statute permits the exercise of jurisdiction to the fullest extent 11 permitted by the U.S. Constitution, the only question the Court must answer is whether 12 the exercise of jurisdiction over Defendant Panama Real Estate Ventures, Inc. would be 13 consistent with due process. See Cal. Civ. Proc. Code § 410.10 (“[A] court of this state 14 may exercise jurisdiction on any basis not inconsistent with the Constitution of this state 15 or of the United States.”). The traditional bases of personal jurisdiction that comport with 16 due process are service while physically present in the forum, domicile, or consent. 17 Absent the traditional bases, a defendant must have such “minimum contacts” with the 18 forum state that “maintenance of the suit does not offend traditional notions of fair play 19 and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 20 On a Federal Rule of Civil Procedure 12(b)(2) motion to dismiss, the plaintiff 21 bears the burden of establishing that personal jurisdiction exists. Mavrix Photo, Inc. v. 22 Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011). Where, as here, the court 23 considers the motion without holding an evidentiary hearing, the plaintiff need only make 24 a prima facie showing of jurisdictional facts to withstand the motion to dismiss. Id. A 25 “prima facie” showing means that the plaintiff need only demonstrate facts that, if true, 26 would support jurisdiction over the defendant. Lindora, LLC v. Isagenix Int’l, LLC, 198 27 F. Supp. 3d 1127, 1135 (S.D. Cal. 2016). The plaintiff cannot simply rest on the bare 28 allegations of her complaint, but uncontroverted allegations in the complaint must be 4 3:16-cv-01437-BEN-DHB 1 taken as true. Id. at 1136. The Court may not assume the truth of allegations which are 2 contradicted by affidavit, but it resolves factual disputes in plaintiff’s favor. Id. 3 A. Traditional Bases of Jurisdiction 4 The parties dispute whether Panama Real Estate Ventures, Inc.’s principal place of 5 business is California. This disagreement concerns the corporation’s domicile. A 6 corporation will be deemed “domiciled” in its state of incorporation and where it has its 7 principal place of business. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 8 U.S. 915, 924 (2011); Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014) (“With respect 9 to a corporation, the place of incorporation and principal place of business are ‘paradigm 10 . . . bases for general jurisdiction.’”). If Plaintiff carries its burden to show that Panama 11 Real Estate Ventures, Inc. is domiciled in California, then this Court will have personal 12 jurisdiction over that entity defendant. 13 Defendants present the translated Panamanian articles of incorporation of Panama 14 Real Estate Ventures, Inc. (Opp’n Ex. A.) The articles were recorded in the Republic of 15 Panama. The articles state that Panama Real Estate Ventures has a “domicile in the City 16 of Panama, Republic of Panama.” (Id. at 2.) The sixth section of the articles elaborates 17 that “[a]s long as the Board of Directors does not resolve[] otherwise, the domicile of the 18 corporation will be in Panama City, Republic of Panama, but the corporation could carry 19 on its business and conduct its activities and establish offices and branches in any other 20 place in the Republic of Panama and anywhere in the world.” (Id. at 3.) 21 Plaintiff offers nothing but conclusory allegations to counter the statements in the 22 articles of incorporation. Plaintiff’s argument relies on three prongs: She contends that 23 the company is domiciled here because (1) the articles authorize business and offices 24 anywhere in the world, (2) the initial directors and officers of the company—Roberts, 25 O’Riordan, and Michael Gallagher—are domiciled in California, and (3) the events that 26 gave rise to the Complaint occurred in the County of San Diego. However, none of these 27 considerations bear on where a corporation’s principal place of business is deemed to be. 28 A company’s principal place of business is “where a corporation’s officers direct, control, 5 3:16-cv-01437-BEN-DHB 1 and coordinate the corporation’s activities.” Hertz Corp. v. Friend, 559 U.S. 77, 92-93 2 (2010). “It is . . . the corporation’s ‘nerve center.’ And in practice it should normally be 3 the place where the corporation maintains its headquarters—provided that the 4 headquarters is the actual center of direction, control, and coordination.” Id. Plaintiff 5 does not offer any facts to demonstrate that Panama Real Estate Ventures, Inc.’s nerve 6 center is in the State of California. Plaintiff fails to carry her burden to establish personal 7 jurisdiction on the basis of domicile in the State of California. 8 Neither of the other traditional bases of jurisdiction apply. Panama Real Estate 9 Ventures, Inc. has not consented to jurisdiction because it has filed a motion to dismiss 10 for lack of personal jurisdiction. See SEC v. Ross, 504 F.3d 1130, 1149 (9th Cir. 2007). 11 And, in-state service of an officer of a foreign corporation, which Plaintiff allegedly did 12 here when it served Timothy Roberts (Proof of Service, ECF No. 5), does not suffice to 13 establish personal jurisdiction over a foreign corporation. Martinez v. Aero Caribbean, 14 764 F.3d 1062, 1067-69 (9th Cir. 2014) (holding that service of summons and complaint 15 on foreign defendant’s vice president while he was in California did not give court 16 personal jurisdiction over defendant). 17 B. Minimum Contacts 18 To exercise personal jurisdiction on the basis of a foreign defendant’s minimum 19 contacts with the forum state, the defendant’s “conduct and connection with the forum 20 state” must be such that the defendant “should reasonably anticipate being haled into 21 court there.” World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297 (1980). There are 22 two kinds of jurisdiction that a state’s courts may exercise over an out-of-state defendant. 23 The first, general jurisdiction, is not applicable here. General jurisdiction allows a 24 defendant to be brought into court for its activities anywhere in the world, untethered 25 from its specific contacts with the forum. Martinez, 764 F.3d at 1066. “General 26 jurisdiction over a corporation is appropriate only when the corporation’s contacts with 27 the forum state ‘are so constant and pervasive as to render it essentially at home’ in the 28 state.” Id. (quoting Daimler, 134 S. Ct. at 751). As noted, the paradigmatic locations 6 3:16-cv-01437-BEN-DHB 1 where general jurisdiction is appropriate over a corporation are its place of incorporation 2 and its principal place of business. Daimler, 134 S. Ct. at 760. “Only in an ‘exceptional 3 case’ will general jurisdiction be available anywhere else.” Martinez, 764 F.3d at 2070 4 (quoting Daimler, 134 S. Ct. at 761 n.19). In this case, Panama Real Estate Ventures, 5 Inc. is not incorporated in California, and Plaintiff has not shown that its principal place 6 of business is in California. Furthermore, there are no allegations about its contacts with 7 the State to justify treating it as an “exceptional case.” 8 The second kind of personal jurisdiction is called specific jurisdiction. Specific 9 jurisdiction exists “when a case ‘aris[es] out of or relate[s] to the defendant’s contacts 10 with the forum.’” Martinez, 764 F.3d at 1066 (quoting Helicopteros Nacionales de 11 Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984)); Walden v. Fiore, 134 S. Ct. 1115, 12 1121 (2014) (“For a State to exercise jurisdiction consistent with due process, the 13 defendant’s suit-related conduct must create a substantial connection with the forum 14 State.”). The Ninth Circuit uses a three-part test to determine whether a defendant’s 15 contacts with the forum state are sufficient to subject it to specific jurisdiction: 16 17 18 19 20 21 (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof, or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) The claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) The exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable. 22 23 Lindora, LLC, 198 F. Supp. 3d at 1138 (quoting Picot v. Weston, 780 F.3d 1206, 24 1212 (9th Cir. 2015)). The plaintiff has the burden of proving the first two prongs 25 and, if met, the burden shifts to the defendant to “set forth a compelling case” as to 26 the third. Id. 27 28 Here, the Court need not address the second and third prongs because Plaintiff fails to meet her burden as to the first. The complaint is devoid of any 7 3:16-cv-01437-BEN-DHB 1 factual allegations about how Panama Real Estate Ventures, Inc. purposefully 2 directed its activities towards the State of California. Indeed, it is unclear how 3 Panama Real Estate Ventures, Inc. was involved in the transaction at all. Plaintiff 4 merely alleges that “each entity defendant,” including Panama Real Estate 5 Ventures, Inc., “was a co-venturer with Defendant Roberts and a participant in and 6 beneficiary of the acts complained of.” (Compl. ¶9.) The Complaint does not 7 contain any other allegations about Panama Real Estate Ventures, Inc. This 8 allegation is insufficient to find that Defendant Panama Real Estate Ventures, Inc. 9 “committed an intentional act expressly aimed at the forum state, causing harm that 10 the defendant knows is likely to be suffered in the forum state.” Lindora, 198 F. 11 Supp. 3d at 1138 (explaining the purposeful direction test). 12 In sum, Plaintiff has not carried her burden to establish personal jurisdiction 13 over Panama Real Estate Ventures, Inc. either on the traditional bases of 14 jurisdiction or on the basis of minimum contacts with the forum state of California. 15 II. 16 Failure to State a Claim Defendants move to dismiss the first and third claims for relief as failing to state a 17 claim because the transaction at issue did not involve a security. Rather, Defendants 18 contend that Plaintiff has alleged that she made a loan to Roberts on which she “expected 19 to receive the principal balance of the loan and any other interest that accrued on the 20 principal balance of $250,000.” (Mot. at 6.) Plaintiff counters that Defendants have 21 created an alternative set of facts that are not set forth in the Complaint. (Opp’n at 7.) 22 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) must be 23 granted where the pleadings fail to state a claim upon which relief can be granted. When 24 considering a Rule 12(b)(6) motion, the court must “accept as true facts alleged and draw 25 inferences from them in the light most favorable to the plaintiff.” Stacy v. Rederite Otto 26 Danielsen, 609 F.3d 1033, 1035 (9th Cir. 2010). A plaintiff must not merely allege 27 conceivably unlawful conduct but must allege “enough facts to state a claim to relief that 28 is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim 8 3:16-cv-01437-BEN-DHB 1 is facially plausible ‘when the plaintiff pleads factual content that allows the court to 2 draw the reasonable inference that the defendant is liable for the misconduct alleged.’” 3 Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 4 U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause of action, 5 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 6 Although the parties do not identify the elements of the first and third claims for 7 relief, each contend that a “security” is necessary for each. Therefore, this Court will 8 assume that the existence of a “security” is required. Both the Securities Act of 1933 and 9 the California Corporations Code provide similar, expansive definitions of the term 10 “security.” See 15 U.S.C. § 77b(a)(1); Cal. Corp. Code § 25019. Under those statutes, a 11 “security” includes “any note, stock, . . . security future, . . . bond, . . . evidence of 12 indebtedness, . . . certificate of interest or participation in any profit-sharing agreement, . . 13 . investment contract, . . . . or, in general, any interest or instrument commonly known as 14 a ‘security.’” § 77b(a)(1); see also § 25019. Both the federal and California courts have 15 rejected a literal reading of these definitions. See Warfield v. Alaniz, 569 F.3d 1015, 16 1020 (9th Cir. 2009); People v. Black, 8 Cal. App. 5th 889, 900 (Ct. App. 2017). 17 Rather, in determining whether a particular transaction involves a security, federal 18 and state courts apply the U.S. Supreme Court’s test in SEC v. Howey, 328 U.S. 293 19 (1946). Warfield, 569 F.3d at 1020; Black, 8 Cal. App. 5th at 900. The Howey test asks 20 “whether the scheme involves an investment of money in a common enterprise with 21 profits to come solely from the efforts of others.” Howey, 328 U.S. at 301. In Howey, 22 the Supreme Court found that defendants offered and sold a “security” where promoters 23 offered land sale contracts for the purchase of orange groves, along with service contracts 24 to cultivate and market the crops, with an allocation of the net profits going to the 25 purchaser. See id. at 299-300. 26 “Although ‘ordinary real estate investments . . . usually are not securities under 27 either Federal or State law, the facts of each case determine whether or not particular 28 instruments are securities.’” Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1130 (9th Cir. 9 3:16-cv-01437-BEN-DHB 1 2013) (quoting Teague v. Bakker, 35 F.3d 978, 987 n.9 (4th Cir. 1994)). In this case, 2 Plaintiff’s Complaint is too ambiguous to satisfy the fact-driven Howey test. The Court 3 must focus its inquiry on what Plaintiff was offered or promised. Warfield v. Alaniz, 569 4 F.3d 1015, 1021 (9th Cir. 2009) (“Under Howey, courts conduct an objective inquiry into 5 the character of the instrument or transaction offered based on what the purchasers were 6 ‘led to expect.’”). According to the Complaint, the terms of Roberts’s offer provided that 7 if the Gallaghers gave cash consideration of $250,000, they would receive a 25% interest 8 in a company that owned a piece of land, and they would receive a “return of 100% of 9 [their] initial investment” within three to six months after the property purchase closed. 10 (Compl. ¶ 16.) 11 Given this offer, it is questionable whether Plaintiff made an “investment of 12 money” for which she expected “profits.” The investment of money prong “requires that 13 the investor commit his assets to the enterprise in such a manner as to subject himself to 14 financial loss.” Warfield, 569 F.3d at 1021 (internal citations omitted). Plaintiff appears 15 to have not subjected herself to financial loss because Roberts promised that she would 16 receive her $250,000 back shortly after the property was purchased. 17 As to an expectation of profits, “by profits, [the Supreme Court] has meant either 18 capital appreciation resulting from the development of the initial investment . . . or a 19 participation in earnings resulting from the use of investors’ funds.” Id. at 1023 (internal 20 citation omitted). Here, the Gallaghers would receive a 25% interest in an entity that 21 owned the land, but Plaintiff fails to allege what Roberts said the entity would do with the 22 land. It appears that, after the Gallaghers made their “investment,” Roberts attempted to 23 develop the land. (Compl. ¶ 21.) However, the Complaint fails to allege that this was 24 Plaintiff’s understanding at the time of the offer and sale of the alleged security. Indeed, 25 the Complaint suggests that Roberts and the Gallaghers may have intended to resell the 26 Panama Property. (Id., Introduction.) Courts have held that the profits element is not 27 satisfied when profits are expected from appreciation in the value of property to be 28 reaped upon resale, as opposed to the result of development of the land. See Harman v. 10 3:16-cv-01437-BEN-DHB 1 Harper, 914 F.3d 262 (9th Cir. 1990). Because Plaintiff does not allege that the 2 Gallaghers were told they would receive investment-like profits, Plaintiff has not 3 adequately alleged a security and consequently has failed to state a plausible claim. 4 4 III. Pleading Fraud 5 Defendants move to dismiss the fourth claim for relief, one for fraud against 6 Defendant Roberts, for failing to satisfy the heightened pleading requirements of Federal 7 Rule of Civil Procedure 9(b).5 Allegations of fraud must be stated with particularity. 8 Fed. R. Civ. P. 9(b). “In order to plead fraud with particularity, the complaint must allege 9 the time, place, and content of the fraudulent representation; conclusory allegations, do 10 not suffice.” Shroyer v. New Cingular Wireless Serv., Inc., 622 F.3d 1035, 1042 (9th Cir. 11 2010) (citing Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 12 1989)); Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (requiring 13 plaintiffs plead who, what, when, where, and how). 14 Here, Plaintiff alleges fraud in connection with the initial meeting in which Roberts 15 offered the Gallaghers a 25% interest in the company owning the Panama Property and a 16 100% return on their investment in exchange for $250,000. However, Plaintiff fails to 17 satisfy the heightened pleading requirement because, at the least, Plaintiff does not allege 18 when this allegedly fraudulent representation occurred. Plaintiff also alleges that Roberts 19 made a “series of additional representations [that] continued to perpetrate the 20 misrepresentations and prevent Plaintiff from discovering the truth, providing her with 21 information as late as 2016 to, in essence, keep her in the deal.” (Compl. ¶ 46.) The 22 Court notes that it is unclear which of Roberts’s alleged “additional representations” 23 24 25 26 27 28 4 The Court does not consider whether Plaintiff has sufficiently pled the other elements of a security under the Howey test. 5 Defendants also argue in their Reply that the fraud claim is time-barred, but the Court will not consider that new argument as it was not raised in their original motion. See Little v. Gore, 148 F. Supp. 3d 936, 944 n2 (S.D. Cal. 2015) (explaining that the court need not consider new arguments raised for the first time in reply). 11 3:16-cv-01437-BEN-DHB 1 Plaintiff contends constitute fraud. To the extent Plaintiff pleads fraud with respect to the 2 allegations in paragraph 21, Plaintiff fails to allege when and where these alleged 3 misrepresentations occurred. The fraud claim is dismissed because Plaintiff has not pled 4 with particularity. 5 6 CONCLUSION The Court GRANTS Defendants’ motion to dismiss. The Court grants Plaintiff 7 leave to file an amended complaint within twenty-one (21) days of the signature date of 8 this Order. See Fed. R. Civ. P. 15 (“The court should freely give leave [to amend] when 9 justice so requires.”). 10 11 IT IS SO ORDERED. Dated: April 11, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 3:16-cv-01437-BEN-DHB

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