Jeanne Calamore v. Juniper Networks Inc

MEMORANDUM

Plaintiff-appellant Calamore appeals the district court’s dismissal of her amended complaint without leave to amend. Cala-more alleged Juniper Networks Inc. issued a false and misleading proxy solicitation to obtain shareholder approval for a stock option plan (“2006 Plan”) in violation of § 14(a) of the Securities Exchange Act and Securities and Exchange Commission Rule 14a-9, in relation to its descriptions of past stock plans. The district court dismissed the complaint, concluding that Calamore’s claim was derivative, not direct, under Delaware law and, thus, could not be brought without a pre-suit demand on Juniper’s board of directors. Dismissal was with prejudice. We have jurisdiction under 28 U.S.C. § 1291 , and we AFFIRM.

DISCUSSION

I. Nature of Calamore’s § 14(a) Claim

We review de novo the dismissal of a direct claim on the ground that it should have been asserted derivatively. Sax v. World Wide Press, Inc., 809 F.2d 610 , 613 & n. 1 (9th Cir.1987). The characterization of a claim as direct or derivative is governed by the law of the state of incorporation. Lapidus v. Hecht, 232 F.3d 679, 682 (9th Cir.2000). Juniper is a Delaware corporation, and thus,…