NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 28 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHNNY POUR, No. 21-15528

Plaintiff-Appellant, D.C. No. 4:20-cv-02447-SBA

v.

MEMORANDUM*

WELLS FARGO MERCHANT SERVICES,

LLC; E. BARAN,

Defendants-Appellees.

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

Submitted July 26, 2022** San Francisco, California

Before: M. MURPHY,*** GRABER, and McKEOWN, Circuit Judges.

Johnny Pour appeals the district court’s order dismissing his Second

Amended Complaint (“SAC”) with prejudice and denying him leave to file his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Michael R. Murphy, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. Proposed Third Amended Complaint. We have jurisdiction under 28 U.S.C.

§ 1291 and we affirm.

We assume without deciding that Pour did not abandon his claims below and

thus we consider them on the merits. We nonetheless agree with the district

court’s alternative holding that the SAC failed to state a claim upon which relief

may be granted. As to Count 5, a two-year statute of limitations applies, Cal. Civ.

Proc. Code § 339(1), and the initial complaint was untimely. We therefore affirm

the dismissal of this claim. As to the remaining claims, we affirm for the reasons

given by the district court.

The district court did not abuse its discretion in denying Pour leave to amend

his complaint again. See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981,

1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted leave to

amend and has subsequently failed to add the requisite particularity to [his] claims,

‘[t]he district court’s discretion to deny leave to amend is particularly broad.’”

(third alteration in original) (quoting In re Read-Rite Corp., 335 F.3d 843, 845

(9th Cir. 2003)).

The district court did not abuse its discretion in failing to convert Wells

Fargo’s motion to dismiss sua sponte into a motion for summary judgment.

Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir.

2007). Even if Pour’s proposed amendment contained “matters outside the

2 pleadings” within the meaning of Fed. R. Civ. P. 12(d), the district court did not

rely on those allegations in deciding Wells Fargo’s motion. Jackson v. S. Cal. Gas

Co., 881 F.2d 638, 642 n.4 (9th Cir. 1989).

We do not consider Pour’s argument, raised for the first time in his reply

brief, that the district court violated his due process rights by dismissing his

complaint without a hearing. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)

(“[A]rguments not raised by a party in its opening brief are deemed waived.”).

AFFIRMED.

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