                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 09 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LAURA A. PLUMLEE, an individual on               No.   14-16924
behalf of herself and all other persons
similarly situated,                              D.C. No. 5:13-cv-00414-LHK

              Plaintiff-Appellant,
                                                 MEMORANDUM*
 v.

PFIZER, INC., a New York corporation,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                      Lucy H. Koh, District Judge, Presiding

                           Submitted October 17, 2016**
                             San Francisco, California

Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.




      *
             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).
      Plaintiff Laura Plumlee appeals the dismissal with prejudice of her First

Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      The district court dismissed Plumlee’s First Amended Complaint with

prejudice because her claims were time-barred under the three- and four-year

statutes of limitations applicable to her claims. On appeal, Plumlee alleges that she

did not learn of Pfizer’s alleged misrepresentations concerning Zoloft’s efficacy

until May 2012, and that her delayed discovery of Pfizer’s alleged

misrepresentations extends the statute of limitations applicable to her claims under

the “discovery rule.” Under California law, the discovery rule delays accrual of

claims only when a plaintiff has no reason to suspect wrongdoing and can not

discover his or her claims with reasonable diligence. See, e.g., Norgart v. Upjohn

Co., 981 P.2d 79, 88–89 (Cal. 1999).

      The discovery rule does not extend the statutes of limitations applicable to

Plumlee’s otherwise time-barred claims. Plumlee alleged that she stopped taking

Zoloft’s generic equivalent in June 2008 because she believed it was ineffective for

treating her depression, contrary to Pfizer’s representations. The district court did

not err in determining that Plumlee therefore had “reason to suspect an injury and




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some wrongful cause” such that she had inquiry notice by June 2008. See Fox v.

Ethicon Endo-Surgery, Inc., 110 P.3d 914, 917, 920 (Cal. 2005).

      Plumlee did not sue Pfizer until January 2013, more than four years after she

had reason to suspect wrongdoing on Pfizer’s part. Therefore, to delay accrual of

her otherwise time-barred claims under the discovery rule, Plumlee needed to

allege that she exercised reasonable diligence to discover the factual bases for her

claims within the three- and four-year limitations periods beginning in June 2008

and that she was unable to discover the factual bases for her claims, despite her

reasonable diligence. See Grisham v. Philip Morris U.S.A., Inc., 151 P.3d 1151,

1159 (Cal. 2007) (“[A] plaintiff whose complaint shows on its face that his claim

would be barred without the benefit of the discovery rule must specifically plead

facts to show (1) the time and manner of discovery and (2) the inability to have

made earlier discovery despite reasonable diligence.” (internal quotations and

citations omitted)). Although Plumlee alleged the “time and manner of discovery”

of the factual bases of her claims—Plumlee alleged she first discovered the bases

for her claims when she watched a 60 Minutes rerun discussing Zoloft’s alleged

ineffectiveness in May 2012—Plumlee failed to allege any facts that she was

unable to discover the factual bases of her claims earlier despite exercising

reasonable diligence. Id. In fact, Plumlee failed to allege any facts that she


                                           3
exercised any diligence at all to discover the factual bases of her claims between

June 2008 and May 2012.1 Under the discovery rule, Plumlee’s failure to allege

any facts that she exercised reasonable diligence between June 2008 and May

2012, or that she was unable to discover the factual bases for her claims between

June 2008 and May 2012 despite exercising reasonable diligence, constitutes a

sufficient basis for affirming the district court’s dismissal with prejudice of her

First Amended Complaint. Id.

      On appeal, Plumlee argues that even had she exercised reasonable diligence

to discover the factual bases of her claims during the applicable limitations periods,

she would not have discovered any information concerning Zoloft’s alleged

ineffectiveness because no information criticizing Zoloft’s efficacy existed to

which a reasonably diligent consumer would have been exposed. However, the

district court took judicial notice of an extensive record of documents—all publicly

available during the relevant limitations periods—which discussed Pfizer’s

unpublished clinical trials and the allegation that Zoloft was no more effective than

a placebo. The district court did not err in taking judicial notice of these



      1
        Of course, had Plumlee filed an action any time during the remainder of
May 2012, she well might have timely commenced an action for the claims with
four-year statutes of limitations. However, Plumlee failed to do so, and instead
waited to file her action until January 2013.
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documents. See Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d

954, 960 (9th Cir. 2010) (holding that a court may take judicial notice of

publications to establish what was in the public realm at the time); Seven Arts

Filmed Entm’t Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir.

2013) (stating that, although courts are required to accept as true well-pleaded

allegations of material fact, courts are not “required to accept as true allegations

that contradict . . . matters properly subject to judicial notice . . .” (quoting Daniels-

Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010))). The judicially

noticed documents either identified Zoloft specifically or referred to

antidepressants generally, just as the 60 Minutes segment that Plumlee alleges to

have imparted notice did. Therefore, the district court properly rejected Plumlee’s

allegation that no information questioning Zoloft’s efficacy existed within the

three- and four-year limitations periods beginning in June 2008 to which a

reasonably diligent consumer would have been exposed. Seven Arts Filmed Entm’t

Ltd., 733 F.3d at 1254.

      Because Plumlee’s individual claims are time-barred, she cannot serve as a

class representative. See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018,

1022 (9th Cir. 2003).




                                            5
      The district court also did not abuse its discretion in dismissing Plumlee’s

claims with prejudice. A district court does not abuse its discretion when it denies

leave to amend because the plaintiff “did not propose any new facts or legal

theories for an amended complaint and therefore gave the [c]ourt no basis to allow

an amendment.” See Gardner v. Martino, 563 F.3d 981, 991 (9th Cir. 2009). The

district court warned Plumlee that failure to cure the deficiencies in her original

complaint would result in a dismissal with prejudice. In her First Amended

Complaint, Plumlee again failed to plead any facts establishing that she exercised

reasonable diligence to discover the factual bases of her claims during the

applicable limitations periods, or that she would be able to cure this deficiency

with additional facts. Therefore, we conclude that the district court did not abuse

its discretion in dismissing Plumlee’s First Amended Complaint with prejudice.

      AFFIRMED.




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