                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 14 2015

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



                            FOR THE NINTH CIRCUIT


ASHURST LAND AND CATTLE, LLC;                    No. 13-56204
et al.,
                                                 D.C. No. 3:12-cv-01328-BEN-
              Plaintiffs - Appellants,           BLM

 v.
                                                 MEMORANDUM*
RANCHO MOUNTAIN PROPERTIES,
INC., a Delaware corporation; et al.,

              Defendants - Appellees,

  and

DOES, 1 through 100 and FIDELITY
NATIONAL TITLE CORPORATION, a
Nebraska corporation,

              Defendants.


                   Appeal from the United States District Court
                     for the Southern District of California
                   Roger T. Benitez, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                              Submitted July 9, 2015**
                                Pasadena, California

Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.

      Ashurst Land and Cattle, LLC, Ray Gray, and Linda Gray (“Plaintiffs”)

appeal the district court’s order granting defendant Rancho Mountain Properties,

Inc.’s (“Rancho”) motion to dismiss pursuant to Rule 12(b)(6). Reviewing the

district court’s order de novo, see Andersen v. DHL Ret. Pension Plan, 766 F.3d

1205, 1210 (9th Cir. 2014), we affirm.

      1. The district court properly concluded that Plaintiffs lack standing to raise

the alleged unlawful foreclosure claims, as such claims are exclusive property of

the bankruptcy estate. “[T]he bankruptcy code endows the bankruptcy trustee with

the exclusive right to sue on behalf of the estate.” Estate of Spirtos v. Superior

Court, 443 F.3d 1172, 1176 (9th Cir. 2006) (emphasis added); see also 11 U.S.C. §

323(b). Also, all claims arising out of the Ashurst Ranch property were released

by the bankruptcy trustee in its settlement agreement with Rancho, and so may no

longer be litigated.

      2. Acknowledging they lack standing to bring claims arising from the

alleged foreclosure as to any real property, Plaintiffs contend that they should be

        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
granted leave to amend their complaint to raise claims relating to personal property

at Ashurst Ranch. “Dismissal without leave to amend is reviewed for abuse of

discretion.” Loos v. Immersion Corp., 762 F.3d 880, 886 (9th Cir. 2014). “Five

factors are taken into account to assess the propriety of a motion for leave to

amend: bad faith, undue delay, prejudice to the opposing party, futility of

amendment, and whether the plaintiff has previously amended the complaint.”

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

      The district court did not abuse its discretion by dismissing Plaintiffs’ claims

with prejudice. Although leave to amend is to be given liberally, there is

considerable evidence suggesting that Plaintiffs brought this action, which has

heretofore centered on the real property, in bad faith, and that the ensuing

uncertainty regarding Ashurst Ranch’s legal status has caused significant delay and

prejudice to Rancho. Moreover, Plaintiffs were already afforded an opportunity to

amend their complaint. See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d

981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted leave

to amend and has subsequently failed to add the requisite particularity to [his]

claims, the district court’s discretion to deny leave to amend is particularly broad.”

(internal quotation marks omitted)).




                                          3
       Finally, any amendments would likely be futile. Plaintiffs do not explain

specifically how they would plausibly amend the complaint to confer standing. In

response to Rancho’s argument that it conducted a “unified foreclosure sale,” in

which Rancho took ownership of all real and personal property on Ashurst Ranch,

Plaintiffs simply assert, without any further factual representations, that Pfau, Pfau

& Pfau, LLC, the subject of the underlying bankruptcy proceedings, “did not own

the personal property at issue.” Furthermore, Plaintiffs do not respond to Rancho’s

arguments that, even if they had standing, they fail to state a claim for ten of their

thirteen causes of action. That Plaintiffs do not “propose any specific allegations

that might rectify their failure . . . demonstrat[es] [] their inability . . . to make the

necessary amendment.” Carrico v. City & Cnty. of San Francisco, 656 F.3d 1002,

1008 (9th Cir. 2011).

       In sum, all of the factors counsel against granting Plaintiffs leave to amend

in this case.

       AFFIRMED.




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