 1                               NOT FOR PUBLICATION                           FILED
 2
 3                       UNITED STATES COURT OF APPEALS                         AUG 22 2018
 4                                                                          MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS
 5                               FOR THE NINTH CIRCUIT
 6
     REJEANNE BERNIER; HANS S.                        No. 18-55146
     CROTEAU,
                                                      D.C. No. 3:17-cv-01028-MMA-
                     Plaintiffs-Appellants,           BLM

      v.
                                                      MEMORANDUM*
     TRAVELERS PROPERTY CASUALTY
     INSURANCE COMPANY, a Connecticut
     corporation; DOES, 1-20, inclusive,

                     Defendants-Appellees.
 7
 8                       Appeal from the United States District Court
 9                          for the Southern District of California
10                       Michael M. Anello, District Judge, Presiding
11
12                               Submitted August 15, 2018**
13
14   Before:      FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
15
16         Rejeanne M. Bernier and Hans S. Croteau appeal pro se from the district

17   court’s order dismissing their diversity action for failure to post a bond and the

18   district court’s order declaring plaintiffs vexatious litigants. We have jurisdiction


           *
                  This disposition is not appropriate for publication and is not precedent
     except as provided by Ninth Circuit Rule 36-3.
           **
                  The panel unanimously concludes this case is suitable for decision
     without oral argument. See Fed. R. App. P. 34(a)(2).
 1   under 28 U.S.C. § 1291. We review for an abuse of discretion. Molski v.

 2   Evergreen Dynasty Corp., 500 F.3d 1047, 1056-57 (9th Cir. 2007) (pre-filing order

 3   entered against a vexatious litigant); Yourish v. California Amplifier, 191 F.3d 983,

 4   989 (9th Cir. 1999) (dismissal for failure to comply with court order). We affirm.

 5         The district court did not abuse its discretion by declaring plaintiffs

 6   vexatious litigants and imposing a pre-filing order against them because it gave

 7   plaintiffs notice and an opportunity to be heard, developed an adequate record for

 8   review, made findings regarding their frivolous litigation history, and narrowly

 9   tailored the restrictions in the pre-filing order. See Molski, 500 F.3d at 1056-61

10   (discussing factors to consider before imposing pre-filing restrictions).

11         The district court properly dismissed plaintiffs’ failure-to-defend claims

12   because no duty to defend plaintiffs in a third party lawsuit arose under the terms

13   of the insurance policy. See Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir.

14   2001) (standard of review of dismissal under Fed. R. Civ. P. 12(b)(6)); Waller v.

15   Truck Ins. Exch., Inc., 900 P.2d 619, 627 (Cal. 1995) (explaining that “an insurer

16   has a duty to defend an insured if it becomes aware of, or if the third party lawsuit

17   pleads, facts giving rise to the potential for coverage under the insuring

18   agreement,” but that “where there is no possibility of coverage, there is no duty to

19   defend” (citations omitted)).

20         The district court did not abuse its discretion by denying plaintiffs leave to


                                               2                                     18-55146
1   amend the failure-to-defend claims because amendment would have been futile.

2   See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir.

3   2011) (setting forth standard of review and stating that leave to amend may be

4   denied where amendment would be futile).

5         AFFIRMED.




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