Dichter–Mad Family Partners, LLP v. United States
| Decision Date | 12 February 2013 |
| Docket Number | No. 11–55577.,11–55577. |
| Citation | 709 F.3d 749 |
| Parties | DICHTER–MAD FAMILY PARTNERS, LLP; Philip Jay Dichter; Claudia Gvirtzman Dichter; Richard M. Gordon, Plaintiffs–Appellants, v. UNITED STATES of America, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Richard H. Gordon (argued), Beverly Hills, CA, and Philip J. Dichter, Malibu, CA, for Appellants.
Sparkle Sooknanan (argued), Lindsey Powell, Mark B. Stern, and Tony West, United States Department of Justice, Washington, D.C.; and André Birotte, Jr., United States Attorney, Los Angeles, CA, for Appellee.
Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding. D.C. No. 2:09–cv–09061–SVW–FMO.
Before: STEPHEN REINHARDT, KIM McLANE WARDLAW, and RICHARD A. PAEZ, Circuit Judges.
The opinion and appendix filed on January 28, 2013 are withdrawn. A new opinion and appendix are filed concurrently with this order.
IT IS SO ORDERED.
After careful de novo review of the record in this appeal, we conclude that the district court correctly concluded that it lacked jurisdiction to entertain Appellants' claims because they fall within the “discretionary function” exception to the United States' waiver of sovereign immunity in the Federal Tort Claims Act. 28 U.S.C. § 2680(a). Thus, we affirm the district court's judgment of dismissal for lack of subject matter jurisdiction and adopt Parts I through V of the district court's comprehensive and well-reasoned April 20, 2010 opinion, Dichter–Mad Family Partners, LLP v. United States, 707 F.Supp.2d 1016 (C.D.Cal.2010), as our own, and attach it to this opinion as an Appendix.
We further hold, as the district court also concluded in an unpublished order dismissing Appellants' claims with prejudice, that the additional allegations made in the Second Amended Complaint 1 are insufficient to overcome the discretionary function exception to the Federal Tort Claims Act's waiver of sovereign immunity.Virtually all of the newly alleged mandatory duties are not in fact mandatory directives that would deprive the United States of its discretionary function immunity. See Terbush v. United States, 516 F.3d 1125, 1138 (9th Cir.2008); Sabow v. United States, 93 F.3d 1445, 1453 (9th Cir.1996) (). Those policies that are arguably mandatory lack the causal relationship to the plaintiffs' alleged injuries required to establish jurisdiction, even under a generous reading of the complaint. “Where, as here, the harm actually flows from the prosecutor's exercise of discretion, an attempt to recharacterize the action as something else must fail.” Gen. Dynamics Corp. v. United States, 139 F.3d 1280, 1286 (9th Cir.1998).
Finally, the district court did not abuse its discretion in denying Appellants' request for additional discovery. “As we have explained, ‘broad discretion is vested in the trial court to permit or deny discovery, and its decision to deny discovery will not be disturbed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant.’ ” Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.2002) (alteration omitted) (quoting Goehring v. Brophy, 94 F.3d 1294, 1305 (9th Cir.1996)). A plaintiff seeking discovery must allege “enough fact to raise a reasonable expectation that discovery will reveal” the evidence he seeks. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Gager v. United States, 149 F.3d 918, 922 (9th Cir.1998) () (internal quotation marks and alterations omitted). The district court's reasoned finding that the plaintiffs failed to meet this burden was a proper exercise of its discretion. See Hallett, 296 F.3d at 751.
AFFIRMED.
APPENDIX
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1. The duties alleged in the Second Amended Complaint are taken from the SEC Enforcement Manual, which the district court ordered the government to produce.
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