                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 24 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

STARLA PACINI; MARIA SANCHEZ;                    No. 12-57038
ALBA PENAGOS; HECTOR PENAGOS,
                                                 D.C. No. 2:12-cv-06859-R-E
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

BANK OF AMERICA NA,

              Defendant - Appellee,

  and

INTERSECTIONS INSURANCE
SERVICES, INC.,

              Defendant.



STARLA PACINI; MARIA SANCHEZ;                    No. 12-57039
ALBA PENAGOS; HECTOR PENAGOS,
                                                 D.C. No. 2:12-cv-06859-R-E
              Plaintiffs - Appellants,

  v.

BANK OF AMERICA NA,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
               Defendant,

  and

INTERSECTIONS INSURANCE
SERVICES, INC.,

               Defendant - Appellee.


                     Appeal from the United States District Court
                        for the Central District of California
                      Manuel L. Real, District Judge, Presiding

                         Argued and Submitted July 10, 2014
                                Pasadena, California

Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.

        Starla Pacini, Maria Sanchez, Alba Penagos, and Hector Penagos

(collectively, Plaintiffs) appeal from the dismissal of a nationwide putative class

action alleging that Bank of America, N.A. (BOA) and Intersections Insurance

Services, Inc. (IIS) enrolled Plaintiffs and other BOA customers in the Smart-Step

Accidental Death Insurance Program and deducted automatic payments from their

accounts without express and informed written consent.

        Although the district court dismissed the case on the basis of comity, “[w]e

may affirm the district court’s judgment on any ground supported by the record.”

In re Zynga Privacy Litig., 750 F.3d 1098, 1103 (9th Cir. 2014) (citation omitted).


                                           2
We affirm the dismissal of Plaintiffs’ complaint because the complaint fails to state

a plausible claim for relief by asserting the specifics of the insurance enrollment

and automatic payment deductions. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The

complaint also fails to plead fraud-based claims with the required particularity,

thereby defeating Plaintiffs’ asserted causes of action for fraud and for RICO

violations. See Reese v. Malone, 747 F.3d 557, 568 (9th Cir. 2014); see also

Sanford v. MemberWorks, Inc., 625 F.3d 550, 557-58 (9th Cir. 2010).

      Counsel for Plaintiffs in this case have now attempted, unsuccessfully, to

plead the same set of facts three times in actions against BOA and IIS – twice on

behalf of Jerome White, see White v. Bank of America, N.A., Case 2:12-cv-

06859-R-E (C.D. Cal. 2012), and once in this case. Another team of lawyers

likewise tried, and failed, to plead this case on behalf of Jorge Gonzalez, see

Gonzalez v. Bank of America Ins. Svcs., Inc., 454 F. App’x 295 (5th Cir. 2011).

Therefore, dismissal with prejudice was not an abuse of discretion because this

record demonstrates that another opportunity to amend would be futile. See Airs

Aromatics, LLC v. Opinion Victoria's Secret Stores Brand Mgmt., Inc., 744 F.3d

595, 600 (9th Cir. 2014).




                                          3
      Notwithstanding our affirmance, we again caution district court judges to

thoroughly review orders submitted by counsel to avoid the inclusion of rulings not

contemplated by the court. See Living Designs, Inc. v. E.I. Dupont de Nemours &

Co., 431 F.3d 353, 373 (9th Cir. 2005) (“Although adopting findings or an order

drafted by the parties is not prohibited, we have criticized district courts that

engaged in the regrettable practice of adopting the findings drafted by the

prevailing party wholesale.”) (citation and internal quotation marks omitted).

      AFFIRMED.




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