                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              OCT 19 2017
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARILYN SPERLING, an individual and               No.    16-55231
on behalf of all others similarly situated,
                                                  D.C. No.
              Plaintiff-Appellant,                5:15-cv-01366-JGB-SP

 v.
                                                  MEMORANDUM*
DSWC, INC., an Ohio corporation; and
DSW SHOE WAREHOUSE, INC., a
Missouri corporation,

              Defendants-Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                     Jesus G. Bernal, District Judge, Presiding

                       Argued and Submitted October 6, 2017
                               Pasadena, California

Before: KLEINFELD, GRABER, and CHRISTEN, Circuit Judges.

      After purchasing shoes at Designer Shoe Warehouse, Marilyn Sperling filed

a putative class action complaint alleging that the store’s price tags were false or

deceptive under California law. The price tags displayed the manufacturer’s


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
suggested retail price as a “compare at” price. Sperling claimed that the price tags

were false or deceptive because she did not understand, nor would a reasonable

consumer have understood, the “compare at” price to be the manufacturer’s

suggested retail price. The district court granted Designer Shoe Warehouse’s

motion to dismiss her second amended complaint and denied leave to amend. We

have jurisdiction under 28 U.S.C. § 1291 and affirm.



      1. We review the district court’s dismissal de novo. Vess v. Ciba-Geigy

Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). Sperling failed to satisfy the

heightened pleading standard of Fed. R. Civ. P. 9(b). She failed to allege sufficient

facts to show with particularity how or why displaying the manufacturer’s

suggested retail price as a “compare at” price was false or deceptive. Id. at 1106.

Price tags suggesting that consumers compare the product’s price to the

manufacturer’s suggested retail price are not inherently false or deceptive. Though

Sperling alleged that she found shoes elsewhere for a few dollars less than the

“compare at” price, she did not allege when she found them, so it could well have

been long after her purchase, when the passage of time could have reduced market

demand for the shoes. Nor do Sperling’s other allegations establish, if proved, that




                                          2
the manufacturer’s suggested retail price was not a fair comparator at the time of

her purchase.



      2. We review the district court’s denial of leave to amend for abuse of

discretion. Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072

(9th Cir. 2008). The district court did not abuse its discretion in denying Sperling

leave to file a third amended complaint. Sperling was given an opportunity to cure

the deficiencies in her pleading after the district court’s guidance in an earlier

dismissal, but she failed to do so. Id.



      AFFIRMED.




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