                                                                            FILED
                             NOT FOR PUBLICATION                             MAY 13 2011

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




                            FOR THE NINTH CIRCUIT



ROBERT E. WALCHLI; RACHELLE                       No. 10-35560
J. WALCHLI,
                                                  D.C. No. 3:09-cv-00359-AC
               Plaintiffs - Appellants,

  v.                                              MEMORANDUM *

COMMUNITY BANK, an Oregon
corporation, et al.,

               Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                               Submitted May 3, 2011 **
                                  Portland, Oregon

Before:        KOZINSKI, Chief Judge, TASHIMA and IKUTA, Circuit Judges.

       Because the Walchlis didn’t appeal the district court’s dismissal of their

RICO claim based on the Release Agreement, this claim is waived. See


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                                 page 2

Rodriguez v. Hayes, 591 F.3d 1105, 1118 n.6 (9th Cir. 2010) (“[F]ailure of a party

in its opening brief to challenge an alternate ground for a district court’s ruling

given by the district court waives that challenge.” (emphasis omitted)). Even if

Community Bank’s discussion of the Release Agreement in its answering brief

could be considered a “waiver of waiver,” we wouldn’t exercise discretion to

review this claim because the Walchlis didn’t file a reply brief, and so never

objected to the district court’s dismissal on this ground. See Singh v. Ashcroft,

361 F.3d 1152, 1157 n.3 (9th Cir. 2004); cf. Han v. Stanford Univ., 210 F.3d 1038,

1040 (9th Cir. 2000).

      Moreover, the district court rightly held that the Walchlis’ third amended

complaint failed to allege a plausible scheme to defraud, which is necessary to

establish the predicate acts of racketeering activity alleged in this case. See 18

U.S.C. §§ 1341, 1343, 1961(1); see also Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949–50 (2009); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393,

1400–01 (9th Cir. 1986).


      AFFIRMED.
