ON DEMAND DIRECT RESPONSE LLC v. << (2021)

United States Court of Appeals, Ninth Circuit.2021-03-31No. No. 19-15948

Summary · law.co

Holding. The circuit court affirmed the district court's orders dismissing in part and granting summary judgment in part on Pollak's third-party claims.

Shana Lee McCart-Pollak appealed the district court's partial dismissal and summary judgment rulings against her third-party claims in a Lanham Act case brought by On Demand Direct Response entities. The appellate court reviewed the district court's dismissal decisions de novo, its denial of leave to amend for abuse of discretion, and its summary judgment ruling de novo. The court found no error in the district court's procedural and substantive handling of Pollak's claims.

The district court properly denied Pollak leave to amend her third-party complaint because the opposing parties had not consented to the amendment. The court was also correct in dismissing certain claims without prior notice under the rule allowing such dismissals when a party cannot possibly win relief, while providing Pollak appropriate notice of her deficiencies as a pro se litigant. The court's subsequent decision to strike previously dismissed claims from an amended complaint was within its discretion to manage its docket.

On the merits, the district court did not err in granting summary judgment on Pollak's unjust enrichment claim because she failed to establish facts showing that the defendant received a benefit that would be inequitable to retain without compensation. The court also properly exercised discretion in denying Pollak's motion for discovery sanctions, and the question of a preliminary injunction became moot upon entry of final judgment.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Proper denial of leave to amend third-party complaint without opposing party consent
Sua sponte dismissal under Rule 12(b)(6) for failure to state a claim
Summary judgment on unjust enrichment claim lacking proof of benefit conferral and inequitable retention
Discretionary denial of discovery sanctions motion

Procedural posture

Pollak appealed pro se from the district court's orders dismissing some third-party claims and granting summary judgment on others in a Lanham Act case.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Shana Lee McCart-Pollak (“Pollak”) appeals pro se the district courts orders dismissing in part and granting summary judgment in part on her third-party claims in an action brought under the Lanham Act by On Demand Direct Response, LLC, and On Demand Direct Response III, LLC. We review de novo the district courts dismissal for failure to state a claim, and we review for an abuse of discretion the district courts denial of leave to amend. Sonner v. Premier Nutrition Corp., 962 F.3d 1072, 1076 (9th Cir. 2020). We review de novo the district courts grant of summary judgment. Branch Banking & Trust Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017). We affirm.

The district court properly denied leave to amend after concluding that the third-party defendants had not consented to amendment of Pollaks third-party complaint. See Fed. R. Civ. P. 15(a)(2) (party may amend pleading either with opposing partys consent or by leave of court). The district court properly, without prior notice, sua sponte dismissed claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) after concluding that Pollak could not possibly win relief on those claims, and properly gave her notice, as a pro se litigant, of which other claims could be amended. See Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (a sua sponte dismissal under Rule 12(b)(6) “may be made without notice where the claimant cannot possibly win relief”); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (“[B]efore dismissing a pro se complaint the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively.”). After allowing amendment only of certain claims, the district court properly exercised its discretion in striking from a subsequent amended third-party complaint the claims that it previously had dismissed without leave to amend. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (court has broad discretion to manage its docket).

The district court did not err in granting summary judgment on Pollaks claim for unjust enrichment because she failed to establish a triable issue on whether she conferred a benefit on third-party defendant Kevin Harrington, whether he received value from such a benefit, or whether he retained the benefit under circumstances such that it would be inequitable for him to retain the benefit without payment of its value. See Certified Fire Prot., Inc. v. Precision Constr., Inc., 128 Nev. 371, 283 P.3d 250, 257 (2012) (elements of unjust enrichment under Nevada law).

The district court properly exercised its discretion in denying Pollaks motion for discovery sanctions under Federal Rule of Civil Procedure 37(c)(1). See Ingenco Holdings, LLC v. Ace Am. Ins. Co., 921 F.3d 803, 808 (9th Cir. 2019).

The issue whether the district court abused its discretion in entering a preliminary injunction against Pollak is moot because the preliminary injunction has expired, and the district court has entered final judgment. See Shell Offshore, Inc. v. Greenpeace, Inc., 815 F.3d 623, 628 (9th Cir. 2016).

Pollaks motion to include transcripts in the record on appeal (Docket Entry No. 4) is denied as unnecessary.

AFFIRMED.