Osher
Osher v. JNI Corp.
Opinion
Lead Opinion
*605 MEMORANDUM **
Plaintiffs appeal the district court’s dismissal of their third amended complaint without leave to amend and with prejudice for failure to state a claim upon which relief may be granted. Plaintiffs, who purport to represent all persons who purchased common stock in JNI Corporation (“JNI”) between July 13, 2000 and March 28, 2001, allege that JNI and six of its officers and directors (collectively, “Defendants”) made false or misleading statements to the market in violation of § 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 10b-5 promulgated thereunder. Plaintiffs also allege that three JNI officers and directors are hable under § 20(a) of the Exchange Act as controlling persons of JNI.
We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo the district court’s dismissal of the third amended complaint, see Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir.2002), and we review for abuse of discretion the district court’s denial of leave to amend, see In re Vantive Corp. Sec. Litig., 283 F.3d 1079, 1097 (9th Cir.2002).
The district court concluded that Plaintiffs’ § 10(b) claim failed to meet the heightened pleading…
Dissenting Opinion
Rawlinson, J.
dissenting:
I respectfully dissent from that portion of the disposition vacating the district court’s judgment and remanding for the district court to “permit Plaintiffs once again to amend their complaint (for the fourth time) or ... state with particularity its reasons for declining to do so.”
The presiding judge carefully and thoroughly not once, not twice, but three times sifted through the allegations made by the Plaintiffs. Each time, the judge explained at great length the deficiencies in the respective Complaint.
In its order dismissing the Second Amended Consolidated Complaint, the court warned the Plaintiffs that the third amendment would be their last. I do not read governing precedent as requiring a remand for the district court to state yet again that the Plaintiffs have failed “to cure deficiencies by amendments previously allowed.” Foman v. Davis, 371 U.S. 178, 182 , 83 S.Ct. 227 , 9 L.Ed.2d 222 (1962).
In Foman , the United States Supreme Court held that leave to amend should be granted “[i]n the absence of any apparent or declared reason — such as ... repeated failure to cure deficiencies by amendments previously allowed ...” Id. (emphasis added).