                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 05 2013

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



                            FOR THE NINTH CIRCUIT


JEFFREY JOHNSON; JENNIFER RIESE;                 No. 11-17062
JAMES PURVIS; SHAUN SIMMONS,
                                                 D.C. No. 3:09-cv-03596-CRB
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

HEWLETT-PACKARD COMPANY,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                        Argued and Submitted May 7, 2013
                            San Francisco, California

Before: W. FLETCHER, GOULD, and CHRISTEN, Circuit Judges.

       Appellants Jeffrey Johnson, Jennifer Riese, James Purvis, and Shaun

Simmons appeal the district court’s (1) denial of their motion to amend their

complaint a fourth time, (2) denial of their request for additional discovery under

Federal Rule of Civil Procedure 56(d), and (3) grant of summary judgment in favor


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
of Appellee Hewlett-Packard Company (“HP”). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

                                          I

      The district court did not abuse its discretion by denying Appellants’ request

for leave to amend their complaint a fourth time after it concluded that three of the

factors described in Foman v. Davis—delay, prejudice, and prior

amendment—favored denial. See 371 U.S. 178, 182 (1962). First, Appellants

“knew or should have known” that their operative complaint was narrower than

their proposed amendment as early as July 2010, when the district court relied on

Appellants’ narrow expression of their claims in denying HP’s Motion to Dismiss

or Strike class allegations. Yet Appellants did not seek leave to amend until the

end of March 2011. See AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d

946, 953 (9th Cir. 2006) (fifteen-month delay is unreasonable). Second, the

district court correctly concluded that Appellants’ proposed amendment would

prejudice HP by significantly expanding Appellants’ theory of the case and

requiring additional discovery. Appellants contend that the proposed amendment

represented a mere “clarification” of the operative complaint, but we conclude that

the expansion was prejudicial given that HP had answered 112 requests for

production, Appellants had exhausted their limits on depositions and


                                          2
interrogatories, and summary judgment was pending. See Texaco, Inc. v. Ponsoldt,

939 F.2d 794, 798–99 (9th Cir. 1991) (finding prejudice despite movant describing

amendment as “implicit” in complaint). Third, Appellants had repeated

opportunities to cure any deficiency in their complaint in the three prior

amendments, which is “another valid reason for a district court to deny a party

leave to amend.” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809–10 (9th Cir.

1988).

      We review a decision on amendment for abuse of discretion, and “[t]he

district court’s discretion to deny leave to amend is particularly broad where

plaintiff has previously amended the complaint.” Desaigoudar v. Meyercord, 223

F.3d 1020, 1026 (9th Cir. 2000) (quoting Allen v. City of Beverly Hills, 911 F.2d

367, 373 (9th Cir. 1990)). The district court’s denial of leave to amend was not

“illogical, implausible, or without support in inferences that may be drawn from

the record.” See Hall v. City of Los Angeles, 697 F.3d 1059, 1079 (9th Cir. 2012)

(quoting United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)).

                                          II

      Appellants next contend that the district court abused its discretion in

denying their requests for further discovery under Federal Rule of Civil Procedure

56(d). “We will only find that the district court abused its discretion if the movant


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diligently pursued its previous discovery opportunities, and if the movant can show

how allowing additional discovery would have precluded summary judgment.”

Byrd v. Guess, 137 F.3d 1126, 1135 (9th Cir. 1998) (quotation marks omitted),

superseded by statute on other grounds as stated in Hunt v. County of Orange, 672

F.3d 606, 616 (2012) (citation omitted). Here the district court interpreted the

complaint and the decisions of the magistrate judge and the special master to

exclude the information Appellants sought, making discovery of that information

contingent on Appellants’ motion to amend.

      Even though we are not convinced that amendment of the complaint was

required to support the discovery sought by Appellants, we affirm the district

court’s denial of their requests under Rule 56(d) for failure to demonstrate

diligence. Appellants failed to file a supporting affidavit with the district court,

which is “[t]he most obvious indication of lack of diligence.” 10B Charles Alan

Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. Civ. § 2740 (3d

ed. 2008). Faced with this absence, Appellants point to their own declarations filed

in opposition to HP’s motions for summary judgment. But those declarations are

inadequate to satisfy Rule 56(d). They merely state in conclusory terms that more

discovery would enable Appellants to show they were harmed, and many of the

assertions in the declarations contradicted Appellants’ prior testimony. It was


                                           4
within the district court’s discretion to deny further discovery under Rule 56(d)

where, as in this case, “the complaining party could only speculate as to what it

might discover.” Apache Survival Coal. v. United States, 21 F.3d 895, 911 n.17

(9th Cir. 1994).

      Appellants contend that their conclusory statements were adequate because

requests for additional time should be granted “almost as a matter of course unless

the non-moving party has not diligently pursued discovery of the evidence.”

Burlington N. Santa Fe R.R. Co. v. Assiniboine & Sioux Tribes, 323 F.3d 767, 774

(9th Cir. 2003) (internal quotation marks and citation omitted). But Appellants

were not sufficiently diligent to render the district court’s decision reversible on an

abuse of discretion standard of review. In Burlington Northern, the plaintiff

brought a summary judgment motion less than one month after filing suit. Id. at

773. “[N]o discovery whatsoever ha[d] taken place.” Id. at 774. We explained

there that where “a summary judgment motion is filed so early in the litigation,

before a party has had any realistic opportunity to pursue discovery relating to its

theory of the case, district courts should grant any Rule 56(f) motion fairly freely.”

Id. at 773. Here, by contrast, Appellants seek extra time to discover “raw data”

that they say is essential to opposing summary judgment but that they did not

request until February 2011, a year and a half after they filed their complaint, after


                                           5
the parties conducted extensive discovery, and after the district court granted an

extension of time to oppose summary judgment. See Hall v. Hawaii, 791 F.2d 759,

760–61 (9th Cir. 1986) (affirming summary judgment entered four months after

filing of suit).

       Appellants now contend that one of their first requests for production from

February 2010, Request for Production 12 (“RFP 12”), had asked for similar raw

data. According to Appellants, RFP 12 demonstrates their diligence. Appellants

did not, however, make this argument to the district court. To the contrary, they

told the district court that they did not seek this raw data before March 2011. Thus,

Appellants waived this argument when they failed to raise RFP 12 before the

district court.

       Again, the standard of review of denial of a motion for further discovery

under Rule 56(d) is abuse of discretion, and “a trial court’s exercise of discretion

will rarely be disturbed.” Garrett v. City & Cnty. of San Francisco, 818 F.2d 1515,

1518 (9th Cir. 1987). The district court’s conclusion that Appellants were not

entitled to the raw data was not illogical or implausible. We hold that “the district

court did not abuse its discretion in denying [Appellants] further discovery.”

Quinn v. Anvil Corp., 620 F.3d 1005, 1015 (9th Cir. 2010) (citing Hinkson, 585

F.3d at 1262).


                                           6
                                         III

      The district court properly granted summary judgment to HP because none

of the named Appellants raised a triable issue of fact that they were harmed

because they were underpaid or paid late in breach of contract. See Reichert v.

Gen. Ins. Co. of Am., 442 P.2d 377, 381 (Cal. 1968); W. Distrib. Co. v. Diodosio,

841 P.2d 1053, 1058 (Colo. 1992). Appellants Riese and Simmons received

checks from HP after concluding their employment, and they contend that

questions over why they were paid late raise triable issues of fact. But neither can

show that HP owes them more than they were paid, and they did not allege in their

complaint that these late payments constituted a breach of contract. Johnson

admits that his sales never reached the threshold at which he would be eligible for

a bonus, and his suggestion that the threshold did not apply contradicts the

complaint. Purvis concedes he cannot produce evidence sufficient to withstand

summary judgment.

      The district court also properly granted summary judgment on Appellants’

Colorado Labor Code claims. Appellants proffered evidence that HP was

concerned about problems with its compensation system as a whole. But this

evidence is not linked to Appellants. It does not show harm to them as individuals.

                                         IV


                                          7
      Because we affirm the district court, Appellants are not entitled to an

accounting. See Duggal v. G.E. Capital Commc’ns Servs., Inc., 81 Cal. App. 4th

81, 95 (Cal. Ct. App. 2000) (accounting is derivative to the underlying claims);

Andrikopoulos v. Broadmoor Mgmt. Co., 670 P.2d 435, 440 (Colo. Ct. App. 1983)

(holding that an accounting is an “extraordinary remedy”).

      AFFIRMED.




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