Dismissal with Prejudice Appropriate for Failure to Plead Properly after “Repeated Opportunities” — No Right to Amend If Failure to Particularize Has Been Called to Plaintiff’s Attention but Not Cured

From Destfino v. Reiswig, 2011 U.S. App. LEXIS 1375 (9th Cir. Jan. 21, 2011):

The district court's "decision to dismiss the [second] amended complaint with prejudice was appropriate in light of [plaintiffs'] repeated failure to cure the deficiencies in [their] pleadings." *** It is well-established that a court may dismiss an entire complaint with prejudice where plaintiffs have failed to plead properly after "repeated opportunities." *** Here, the district court gave plaintiffs several chances to amend, with detailed instructions as to what they needed to do to fix the problems with their complaint. Plaintiffs failed to comply with these orders and it was therefore proper for the court to dismiss their entire complaint without further leave to amend.

Finally, plaintiffs argue that sanctioning them by dismissing the second amended complaint without leave to amend was not within the district court's authority. They misread the court's order dismissing the second amended complaint as imposing a dismissal sanction under 28 U.S.C. § 1927, which only authorizes monetary sanctions. It's true that defendants moved for monetary sanctions, both pursuant to 28 U.S.C. § 1927 and the court's inherent power. But the court declined to grant a monetary award to plaintiffs because it didn't have a "specific request for monetary sanctions before it." Instead, the court acted well within its inherent power to control its docket by dismissing the complaint with prejudice, finding this to be "sanction" enough. *** This dismissal can hardly be called a sanction anyway, since plaintiffs had no right to any further amendment. See Zucco Partners, 552 F.3d at 1007 ("[W]here the plaintiff has previously been granted leave to amend and has subsequently failed to add the requisite particularity to its claims, [t]he district court's discretion to deny leave to amend is particularly broad." (internal quotation marks omitted) (second alteration in original)).

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