                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 22 2012

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



                            FOR THE NINTH CIRCUIT


GEORGE HUFF; LENDARD MORRIS;                     No. 10-56344
LORRAINE SORIANO; RICHARD
SINGLETARY; RANDALL BAKER;                       D.C. No. 2:10-cv-02911-DMG-RC
JAMES BUTTS; RICHARD IRVING;
ANNETTE YOUNG; JOSE DE ANDA,
Jr.,                                             MEMORANDUM*

              Plaintiffs - Appellants,

  v.

CITY OF LOS ANGELES,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                     Dolly M. Gee, District Judge, Presiding

                          Submitted February 17, 2012**
                              Pasadena, California

Before: PREGERSON, HAWKINS, and BEA, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      On July 1, 2010, George Huff, Lendard Morris, Lorraine Soriano, Richard

Singletary, Randall Baker, James Butts, Richard Irving, Annette Young, and Jose

de Anda, Jr. (“Appellants”) filed their Second Amended Complaint (“SAC”) in

district court alleging that the City of Los Angeles (“the City”) had violated 29

U.S.C. §§ 207(a) and 207(o) of the Fair Labor Standards Act (“FLSA”) by failing

to compensate them for integral and indispensable activities performed before or

after regular work shifts: namely, donning and doffing their uniforms and safety

equipment at work. The City moved to dismiss Appellants’ SAC, without leave to

amend, on the ground that it failed to cure the defects of the First Amended

Complaint, and, therefore, failed to state a claim under this court’s decision in

Bamonte v. City of Mesa, 598 F.3d 1217 (9th Cir. 2010). We affirm.

      The district court did not err in dismissing Appellants’ claims under Fed. R.

Civ. P. 12(b)(6). A dismissal for failure to state a claim pursuant to Rule 12(b)(6)

is reviewed de novo. “While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations . . . a plaintiff's obligation to

provide the grounds of his entitle[ment] to relief requires more than labels and

conclusions.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

citation and quotation marks omitted).



                                            2
      In their SAC, Appellants did not state whether the donning and doffing of

their uniforms and safety equipment at work was required by “law, rule, their

employer, or the nature of their work.” Without such elucidation, Appellants’

claims bear a striking, if not matching, resemblance to the claims brought by the

police officers in Bamonte, where we found that, under the FLSA and the Portal-

to-Portal Act, the City of Mesa need not compensate its police officers for the

donning and doffing of their uniforms and safety gear at home.1 To survive the

City’s Motion to Dismiss, it was vital for Appellants to plead facts which

distinguish their conduct from that which was found not to be compensable in

Bamonte. For instance, Appellants did not allege in their SAC why more security

guards did not use the locker room provided by the City at the John Ferraro

Building or how their uniforms and safety gear differed in function and utility from

those found by the court in Bamonte not to be integral and indispensable. It is not

this court’s responsibility to ruminate why Appellants did not take advantage of the


      1
       As dictated by the terms of their employment, Appellants are required to
don and doff the following work uniform and safety equipment: utility belt (also
known as a Sam Browne belt), black boots, body armor, baton, baton holster,
chemical agent (pepper spray), chemical agent holder, handcuffs, two-way radio,
Nextel phone, name tag, and security badge. The Appellants in Bamonte were
required to don and doff the following: “trousers, a shirt, a nametag, a clip-on or
velcro tie, specified footwear, a badge, a duty belt, a service weapon, a holster,
handcuffs, chemical spray, a baton, and a portable radio. The wearing of body
armor [was] optional . . . .” Bamonte, 598 F.3d at 1220.
                                          3
district court’s leave to amend its First Amended Complaint. Because the SAC

fails to differentiate Appellants’ claims from those in Bamonte, the district court

did not err in dismissing these claims without leave to amend.

       Nor did the district court abuse its discretion in denying Appellants further

leave to amend. In its Order granting the City’s Motion to Dismiss, the district

court stated:

       Given that Plaintiffs were previously granted leave to amend in light of
       the Ninth Circuit’s recent Bamonte decision and have since failed to
       allege facts sufficient to state a claim for relief, the court finds that
       granting Plaintiffs leave to amend yet again would be futile.


       The district court gave Appellants notice that it was essential to distinguish

their claims from those that were found to be unpersuasive in Bamonte. Instead of

doing so, Appellants merely amended three paragraphs that included facts that are

virtually indistinguishable from those in Bamonte. Thus, the district court did not

abuse its discretion in denying Appellants leave to amend after it dismissed their

SAC.

       In sum, Appellants fail to plead sufficient facts to distinguish their claims

from those which were found not to be compensable under Bamonte. The district

court properly granted the City’s Motion to Dismiss and did not abuse its



                                           4
discretion in denying Appellants leave to amend their claims. The judgment of the

district court is AFFIRMED.2




      2
         On appeal, Appellants contend that this court erred in deciding Bamonte.
While Appellants may be displeased that Bamonte precludes them from advancing
their claims against the City,“[a]bsent exceptional circumstances, [the Ninth
Circuit] will not consider arguments raised for the first time on appeal.” Alohacare
v. Hawaii Dep’t Human Servs., 572 F.3d 740, 744 (9th Cir. 2009). No such
circumstances exist here. Appellants have therefore waived any challenge
regarding whether Bamonte was correctly decided. Furthermore, even if
Appellants had not waived the opportunity to raise the question whether Bamonte
was properly decided, we could not entertain such a challenge. A three-judge
panel may not overrule a prior decision of the court. Miller v. Gammie, 335 F.3d
889, 899 (9th Cir. 2003).
                                         5
