                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 02 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



HELEN TARAGAN; FRANCES                           No. 11-15664
JEANETTE TAYLOR; and CHARLES
TAYLOR, on behalf of themselves and all          D.C. No. 4:09-cv-03660-SBA
others similarly situated,

             Plaintiffs - Appellants,            MEMORANDUM *

  v.

NISSAN NORTH AMERICA, INC., a
California corporation; and NISSAN
MOTOR COMPANY, LTD., a Japanese
company,

            Defendants - Appellees.


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

                        Argued and Submitted July 16, 2012
                            San Francisco, California

                                                                                      *
Before: FERNANDEZ and PAEZ, Circuit Judges, and SETTLE, District Judge.                   *




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Benjamin Hale Settle, United States District Judge for
the Western District of Washington, sitting by designation.
      Helen Taragan, Frances Jeanette Taylor, and Charles Taylor (“Appellants”)

appeal the district court’s dismissal of their complaint without leave to amend. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part and

remand with leave to amend.

      The district court properly construed the National Highway Traffic Safety

Administration’s Federal Motor Vehicle Safety Standard 114 (“FMVSS 114”)

because the regulation’s language is plain and unambiguous. Wards Cove Packing

Corp. v. Nat’l Marine Fisheries Serv., 307 F.3d 1214, 1219 (9th Cir. 2002) (“[T]he

plain meaning of a regulation governs[.]”). Based on the plain language of

FMVSS 114, the district court correctly determined that Appellants had failed to

state a cognizable claim for relief and properly dismissed these claims with

prejudice.

      Appellants argue that the district court erred when it dismissed their entire

complaint because they asserted claims for relief that were not based on a violation

of FMVSS 114. Nissan North America, Inc., and Nissan Motor Company, Ltd.,

counter that Appellants’ argument should be rejected because Appellants failed to

ask the district court for leave to amend. The district court, however, expressly

addressed the issue when it dismissed Appellants’ claims without leave to amend.

“Because the issue was expressly addressed and decided by the district court,


                                          2
raised on appeal, and fully briefed by both parties, it is subject to review by this

court.” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011).

      The district court’s denial of leave to amend a complaint is reviewed for an

abuse of discretion. See Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004).

“The standard for granting leave to amend is generous.” Balistreri v. Pacifica

Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1990) (noting that leave to amend should

be granted when a court can “conceive of facts” that would render the plaintiff’s

claim viable). In this case, Appellants’ claims could conceivably be viable based

on allegations that their vehicles are unsafe regardless of whether the vehicles

violate FMVSS 114. Therefore, the district court abused its discretion in

dismissing Appellants’ complaint without leave to amend. On remand, the district

court shall grant Appellants leave to amend, but Appellants may not include claims

based on violations of FMVSS 114 because these claims were properly dismissed

with prejudice.

      AFFIRMED in part, REVERSED in part, and REMANDED with leave

to amend consistent with this disposition. Each party to bear its own costs.




                                           3
