                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 20 2010

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




                            FOR THE NINTH CIRCUIT



MARKET TRADING, INC.,                             No. 09-55445

              Plaintiff–Appellant,                D.C. No. 3:06-cv-01021-W-CAB

  v.
                                                  MEMORANDUM *
AT&T MOBILITY, LLC, a Delaware
corporation, FKA Cingular Wireless LLC,

              Defendant–Appellee.



                    Appeal from the United States District Court
                      for the Southern District of California
                    Thomas J. Whelan, District Judge, Presiding

                         Argued and Submitted June 9, 2010
                                Seattle, Washington

Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.

       Plaintiff–Appellant Market Trading appeals from the district court’s

dismissal, with prejudice, of its amended class action complaint for failure to state

a claim. See Fed. R. Civ. P. 12(b)(6). The complaint alleged that

Defendant–Appellee AT&T Mobility (“AT&T”) breached its cell phone contract


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
with Market Trading and violated California’s Unfair Competition Law (“UCL”).

Both claims are based on the allegation that, if Market Trading shifted from its

present cell phone plan to one providing fewer monthly minutes of service, AT&T

would not permit the transfer of all of the “rollover minutes” that Market Trading

had accumulated under its present plan.1 According to the original complaint,

Market Trading had accumulated some 10,000 rollover minutes. We affirm the

district court’s judgment.

A.    Standard of Review

      We review the dismissal of the amended complaint de novo. See Knievel v.

ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). In so doing, we “accept all factual

allegations in the complaint as true and construe the pleadings in the light most

favorable to the nonmoving party,” namely, Market Trading. Id. We do not ask

for “detailed factual allegations,” but Market Trading must go beyond “labels and

conclusions, and a formulaic recitation of the elements of a cause of action” and

provide us the grounds of its entitlement to relief. Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007). Thus, “[w]hile legal conclusions can provide the


      1
         AT&T offered subscribers a choice of several rate plans, each of which
provided a fixed number of “Anytime” minutes per month. With the rollover
feature, any unexpended Anytime minutes in a given month would, subject to
certain conditions, “roll over,” or carry forward, to the following month for later
use.

                                          2
framework of a complaint, they must be supported by factual allegations.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). Those factual allegations,

“accepted as true,” must “‘state a claim to relief that is plausible on its face.’” Id.

at 1949 (quoting Twombly, 550 U.S. at 570); accord Moss v. U.S. Secret Serv., 572

F.3d 962, 970 (9th Cir. 2009).

B.    The District Court Properly Dismissed the Amended Complaint

      The district court dismissed the amended complaint, as it had the original

complaint, for failing to plead factual allegations from which one could reasonably

infer that AT&T had caused Market Trading to suffer actual harm, a requisite

element of the stated claims.2 The district court calculated from the original

complaint that, to accumulate 10,000 rollover minutes, Market Trading had been

using its cell phone an average of 17 minutes per day. If it changed from its 850-

minute monthly plan to AT&T’s smallest 450-minute monthly plan, Market

Trading would have to increase its regular cell phone usage immensely in order to



      2
        “Damages are, of course, a necessary element of the breach of contract
cause of action.” Navellier v. Sletten, 106 Cal. App. 4th 763, 775 (Ct. App. 2003);
see also Amelco Elec. v. City of Thousand Oaks, 38 P.3d 1120, 1129 (Cal. 2002).
Likewise, under California law, a plaintiff has standing to assert a claim under the
UCL “only if he or she ‘has suffered injury in fact and has lost money or property
as a result of such unfair competition.’” Californians for Disability Rights v.
Mervyn’s, LLC, 138 P.3d 207, 209 (Cal. 2006) (quoting Cal. Bus. & Prof. Code
§ 17204 (West 2010)).

                                            3
make any use of accumulated rollover minutes. The complaint contained no

factual allegations supporting such an increase of use. The complaint accordingly

did not present a plausible claim of harm.

       We agree with the district court. Other than the bare allegation that Market

Trading “was preparing to significantly increase the monthly number of [minutes

it] used,” no facts are alleged in the complaint that make it plausible that Market

Trading would increase its average monthly usage 26-fold, from 17 minutes to

more than 450 minutes, the point at which it would have tapped its supply of

rollover minutes. “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570).

“Threadbare recitals of the elements of a cause of action,” such as those in the

amended complaint, “supported by mere conclusory statements, do not suffice.”

Id. (citing Twombly, 550 U.S. at 555). Accordingly, the district court properly

dismissed the amended complaint.

C.     The District Court Properly Denied Market Trading Leave to Amend

       When a court dismisses a complaint pursuant to Rule 12(b)(6), denial of

leave to amend “is improper unless it is clear, upon de novo review, that the

complaint could not be saved by any amendment.” Polich v. Burlington Northern,


                                             4
Inc., 942 F.2d 1467, 1472 (9th Cir. 1991). The factual allegations in the proposed

second amended complaint, like the allegations in the previous complaints, cannot

support a reasonable inference that, as Market Trading argues on appeal, the

“injury suffered was forfeiture of its accumulate [sic] roll over minutes.”3 The

factual allegations in the proposed complaint are in all material respects identical

to those in the complaint it purports to amend. Market Trading has placed three

successive complaints before the district court without stating a plausible claim for

relief. Because “leave to amend would have been a futile exercise,” Gompper v.

VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002), the district court properly denied it.

      The judgment of the district court is

      AFFIRMED.




      3
         In its opening brief, Market Trading argues that we should reverse and
remand so that it can add a claim for rescission of contract to its would-be second
amended complaint. Market Trading waived this argument by failing to raise it in
the court below, and we will not, therefore, entertain it on appeal. See Synagogue
v. United States, 482 F.3d 1058, 1060 n.4 (9th Cir. 2007) (declining to remand to
the district court with leave to amend the complaint with a new claim where
plaintiffs “neither relied on this proposed cause of action below nor sought
leave . . . to amend their complaint to add it”).




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