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SUSSMAN v. SAN DIEGO POLICE DEPARTMENT (2020)

United States Court of Appeals, Ninth Circuit.

Nancy SUSSMAN; Michael Sussman, Estate thereof by and thru his special administer for the estate, Plaintiffs-Appellants, v. SAN DIEGO POLICE DEPARTMENT; et al., Defendants-Appellees.

No. 19-56329

Decided: September 15, 2020

Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.

Nancy Sussman, Pro Se Steven Ray Guess, San Diego City Attorney's Office, San Diego, CA, for Defendants - Appellees San Diego Police Department, Ryan Scott, Jeff Jordan, City Attorney Office, Mara Elliot Matthew L. Green, Best Best & Krieger LLP, San Diego, CA, for Defendant - Appellee Kenneth So Simon Michael Kann, Esquire, Deputy General Counsel, San Diego Unified Port District, San Diego, CA, for Defendant - Appellee Harbor Police Craig Joseph Leff, AT, Law Offices of Craig Joseph Leff, San Diego, CA, for Defendant - Appellee Michael McCabe Charles R. Grebing, Esquire, Mallory Holt, Attorney, Wingert Grebing Brubaker & Juskie LLP, San Diego, CA, for Defendant - Appellee Michael Pancer Ashley Walker Nagashima, Attorney, Walsh McKean Furcolo, LLP, San Diego, CA, for Defendant - Appellee John D. Kirby Alan Steven Yockelson, Esquire, Attorney, A - 385, San Diego, CA, for Defendant - Appellee Charles Roger Khoury, Jr. Gregory P. Konoske, Managing Senior Counsel, Konoske, Akiyama & Brust, LLP, San Diego, CA, for Defendant - Appellee Alfonso Martinez Tim Jude Vanden Heuvel, Esquire, Deputy Attorney General, AGCA - Office of the Attorney General, San Diego, CA, Corinne Bertsche, Attorney, Lewis Brisbois Bisgaard & Smith LLP, San Diego, CA, for Defendant - Appellee Heather Buergen Melissa M. Holmes, Senior Deputy, Office of County Counsel, San Diego, CA, for Defendant - Appellee Jennifer Simone Francisco Martinez, Pro Se James Chortanian, AT, Doyle Schafer McMahon LLP, Irvine, CA, for Defendant - Appellee A.P. Zmurkewicz

MEMORANDUM **

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. 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, 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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SUSSMAN v. SAN DIEGO POLICE DEPARTMENT (2020)

Docket No: No. 19-56329

Decided: September 15, 2020

Court: United States Court of Appeals, Ninth Circuit.

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