NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAY 31 2011

MOLLY C. DWYER, CLERK

TIMOTHY WALSH AND JASBIR No. 10-15004 U.S . CO U RT OF AP PE A LS

WALSH,

D.C. No. 4:09-cv-0446-SBA Plaintiffs-Appellants,

v. MEMORANDUM *

COUNTRYWIDE HOME LOANS, INC.;

COUNTRYWIDE BANK, FSB;

SHAPELL INDUSTRIES, INC.; NL,

INC.; RESIDENTIAL PACIFIC

MORTGAGE; BRETT HILLIARD;

JOHN LUEDEMANN; and JOE POLIZZI,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Saundra Brown Armstrong, District Judge, Presiding

Argued and Submitted April 12, 2011 San Francisco, California

Before: GOODWIN and N.R. SMITH, Circuit Judges, and COLLINS, District Judge.**

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. Timothy and Jasbir Walsh appeal the dismissal of their action pursuant to

Federal Rule of Civil Procedure 41(b) and denial of their motion for

reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b). We have

jurisdiction under 28 U.S.C. y 1291. We review for abuse of discretion. Malone v.

U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to

comply with court order); United Nat'l Ins. Co. v. Spectrum Worldwide, Inc., 555

F.3d 772, 780 (9th Cir. 2009) (reconsideration). We affirm.

The district court did not abuse its discretion by dismissing the action for

failure to comply with a court order. The court found that the Walshes' original

response to Appellees' motions to dismiss did not directly address any of the

arguments advanced in the motions. Although the court could have dismissed

under Federal Rule of Civil Procedure 41(b) at that time, it allowed the Walshes to

file a supplemental response and laid out specific instructions in the order. It also

advised the Walshes that their failure to file a proper supplemental response could

result in dismissal under Federal Rule of Civil Procedure 41(b). Then, upon

request of the Walshes, the district court extended its deadline to file the

supplemental response by over a month. When the Walshes did file the

supplemental response, the district court found that the response failed to comply

with the court's order and contained the same defects as the original response.

2 The district court considered the requisite factors necessary for a 41(b)

dismissal and applied this legal standard in a way that was neither illogical,

implausible, nor unsupported by the record. See Pagtalunan v. Galaza, 291 F.3d

639, 642-43 (9th Cir. 2002) (discussing factors that district court must consider

before dismissing under Federal Rule of Civil Procedure 41(b); see also United

States v. Hinµson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc) (discussing

abuse of discretion analysis). The district court was in the best position to assess

whether the circumstances of this case warranted dismissal. See Van Bronµhorst v.

Safeco Corp., 529 F.2d 943, 947 (9th Cir. 1976) ('[T]he district judge's

determination that his order was not complied with is entitled to considerable

weight on appeal since he is in the best position to assess the circumstances.')

(internal citations omitted). As such, this is not a case where we will substitute

our judgment for that of the district court.

The Walshes' argument that the incompetence of their attorneys should

require greater flexibility from the district court is unavailing. See Linµ v. Wabash

R.R. Co., 370 U.S. 626, 633-34 (1962) ('There is certainly no merit to the

contention that dismissal of petitioner's claim because of his counsel's unexcused

conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this

attorney as his representative in the action, and he cannot now avoid the

3 consequences of the acts or omissions of this freely selected agent. Any other

notion would be wholly inconsistent with our system of representative

litigation . . . .'). In any event, the district court demonstrated flexibility when it

sua sponte allowed a second opportunity to oppose the motion, gave the Walshes

instructions on how to oppose the motion, and granted an extension of time to file

the supplemental response.

For the same reason, the district did not abuse its discretion in denying the

60(b) motion. '[P]arties are bound by the actions of their lawyers, and alleged

attorney malpractice does not usually provide a basis to set aside a judgment

pursuant to Rule 60(b)(1).' Casey v. Alberston's, Inc., 362 F.3d 1254, 1260 (9th

Cir. 2004). Any other argument that the district court abused its discretion by

denying the motion for reconsideration under Rules 59(e) and 60(b) is waived on

appeal. The Walshes devote less than one page of their brief to discussing these

issues and maµe no efforts to explain with any specificity why they qualified for

Rule 59(e) or 60(b) relief and why the district court abused its discretion in holding

they did not. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) ('We will

not manufacture arguments for an appellant, and a bare assertion does not preserve

a claim, particularly when, as here, a host of other issues are presented for

review.'). In addition, the Walshes fail to cite case authority or the record in

4 support of this argument. See U.S. v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010)

(citing U.S. v. Williamson, 439 F.3d 1125, 1138 (9th Cir. 2006)); see also Fed. R.

App. P. 28(a)(9)(A) ('The Federal Rules of Appellate Procedure require that a

brief contain the 'appellant's contentions and the reasons for them, with citations to

the authorities and part of the record on which the appellant relies . . . .').

AFFIRMED.

5

FILED

Walsh v. Countrywide Home Loans 10-15004 MAY 31 2011

MOLLY C. DWYER, CLERK

GOODWIN, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS

The Walshes' first and central assignment of error states, 'It was error to

deny the pro se at least one opportunity to amend.' The majority opinion fails to

address the issue. The Walshes are correct. Therefore, I dissent.

'The court should freely give leave [to amend] when justice so requires.'

Fed. R. Civ. P. 15(a)(2).1 'If the underlying facts or circumstances relied upon by a

plaintiff may be a proper subject of relief, he ought to be afforded an opportunity

to test his claim on the merits.' Foman v. Davis, 371 U.S. 178, 182 (1962). This

principle is to be applied with 'extreme liberality.' Eminence Capital, LLC v.

Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (per curiam). 'This policy is

applied even more liberally to pro se litigants.' Eldridge v. Blocµ, 832 F.2d 1132,

1135 (9th Cir. 1987).

There are a number of specific rationales, the Foman factors, that justify

dismissal without granting leave to amend: undue delay, bad faith, repeated failure

to cure deficiencies by previous amendments, undue prejudice, or futility. Foman,

371 U.S. at 182. 'Absent prejudice, or a strong showing of any of the remaining

Foman factors, there exists a presumption under Rule 15(a) in favor of granting

1 Citation is to the Federal Rules of Civil Procedure 2009 Revised Edition, quoting to text effective until December 1, 2009. leave to amend.' Eminence Capital, LLC, 316 F.3d at 1052. 'Dismissal with

prejudice and without leave to amend is not appropriate unless it is clear on de

novo review that the complaint could not be saved by amendment.' Id.

Here, Defendants-Appellees (Countrywide) opposed the mortgage fraud and

other claims alleged in the pro se complaint by filing motions to dismiss and,

alternatively, motions for a more definite statement. In response, the Walshes,

through counsel retained after the motions had been filed, filed a response that was

captioned in part as a 'request for leave to amend complaint.'

The district court did not grant leave to amend the pro se complaint as

requested, and ultimately dismissed it with prejudice. The court, however, never

found the presence of any of the Foman factors. The court did not, as required by

Eminence Capital, find the complaint could not be saved by amendment. Instead

the district court ordered the Walshes to maµe a separate filing with specific

showings to support leave to amend, and later rejected that filing. The district court

applied the wrong legal standard and, therefore, abused its discretion.

The majority, liµe the district court, characterizes the Walshes' original

response to Countrywide's motions as not directly addressing any of the arguments

Countrywide advanced in those motions. In fact, the Walshes' original response

identified the claims the Walshes were willing to dismiss, named by defendant,

loan, and cause of action. The response also properly stated our rule concerning leave to amend a complaint. In other words, it did directly and acceptably respond

to the motions to dismiss and for a more definite statement. More importantly, the

nature of the Walshes' response provided no proper rationale for the district court's

failure to grant leave to amend. See Foman, 371 U.S. at 182.

The district court also tried to justify its failure to grant leave to amend the

pro se complaint on the grounds that the Walshes' counsel did not timely meet and

confer with Countrywide. This is clear error, as it is undisputed that the Walshes'

counsel did, on the last day allowable, meet and confer prior to filing their

response, as required by the court's standing orders. Again, this is not a proper

rationale to deny leave to amend. See id.

Finally, the district court claimed that 'it is improper to seeµ leave to amend

under Rule 15 by embedding such a request in a response to a motion to dismiss.'

Striµe three. The failure of a party properly to caption a request for leave to amend

or the act of a party to embed the request for leave to amend in an opposition to a

motion to dismiss is no bar to granting leave to amend. Balistreri v. Pacifica Police

Dep't, 901 F.2d 696, 701 (9th Cir. 1990). In fact, a court may construe an

opposition as a request for leave to amend even where, unliµe here, no formal

request for leave has even been made. Edwards v. Occidental Chem. Corp., 892

F.2d 1442, 1445 n.2 (9th Cir. 1990).

Barring any proper rationale to do otherwise, leave to amend the pro se complaint was presumed and should have been granted when first requested. After

the district court's multiple errors in both failing to grant leave and inadequately

attempting to justify that decision, the district court's application of Rule 41(b)

simply compounded these errors. The district court's initial and primary error must

be corrected and our Rule 15 jurisprudence properly applied. I would vacate the

dismissal and remand to the lower court to grant leave to amend so that this case

can be resolved, as required, on the merits.