Bautista

concurring in part and dissenting in part:

Because of the defects in the second amended complaint, ably analyzed in the majority’s opinion, the district court properly dismissed this action after entertaining two previous efforts to fashion a viable complaint. While I concur in the court’s opinion to that extent, I specifically reject the notion that the district court must give plaintiffs “some guidance” on how to plead their case and that it is an abuse of discretion when it does not. Majority opinion at 842. To that extent and as to the judgment, I must respectfully dissent.

Plaintiffs are represented by experienced counsel duly admitted to practice in the federal courts. In determining whether the district court abused its discretion, the majority conducts an analysis that presumes district courts must conduct tutorials for the benefit of wayward plaintiffs. The court chastises the district court for

Id. The majority obviously assumes that its prescribed hand-holding is the role of the district court and, moreover, any failure to fulfill that role amounts to an abuse of discretion. I fear the court goes too far.

When parties fail to plead their claims with sufficient…

Opinion by Judge SCHWARZER; Concurrence by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN.

We must decide whether the district court abused its discretion in dismissing with prejudice plaintiffs’ second amended complaint.

Plaintiffs filed their complaint in state court alleging claims of employment discrimination under California Government Code section 12940 on behalf of fifty-one named individuals. Named as defendants were R.A. Music, Inc., the County of Los Angeles and others no longer parties. Defendants removed pursuant to 28 U.S.C. § 1331 , alleging subject matter jurisdiction under 29 U.S.C. § 301 because plaintiffs were covered by a collective bargaining agreement. The nub of the controversy alleged is that in August 1995, defendant R.A. Music took over the operations of Family Restaurants in the Los Angeles Music Center. The complaint alleged that *840 the fifty-one named plaintiffs had been employees of Family Restaurants but were denied employment by R.A. Music based upon their race, age and disability though they were qualified for the positions they held with Family Restaurants and had performed their jobs satisfactorily.

After…

concurring separately:

Judge Schwarzer’s opinion reaches the correct result: the district court’s dismissal with prejudice of the plaintiffs’ -second amended complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), was erroneous. Dismissal with prejudice is proper under Rule 12(b)(6) only if it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957). That is not the case here. The complaint set forth proper claims for employment discrimination based on age, race, and disability under the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code 12.900 et seq. In fact, the second amended complaint alleged that each plaintiff was a member of at least one protected class; that plaintiffs duly performed all conditions of their employment agreement at the Music Center until R.A. Music terminated their employment on or about August 13, 1995; that they were all qualified for the positions they held and for which they reapplied; and that similarly situated individuals outside the plaintiffs’ protected classes were treated more…