                            NOT FOR PUBLICATION                           FILED
                                                                           JUL 3 2017
                     UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


AMISTAD CHRISTIANA CHURCH;                       No.    15-17080
PASTOR JOEL H. MENCHACA;
PASTOR JOELDA MAY,                               D.C. No.
                                                 2:15-cv-01413-APG-CWH
               Plaintiffs-Appellants,

    v.                                           MEMORANDUM*

LIFE IS BEAUTIFUL, LLC; et al.,

               Defendants-Appellees.


                       Appeal from the United States District
                          Court for the District of Nevada
                     Andrew P. Gordon, District Judge, Presiding

                        Argued and Submitted June 15, 2017
                             San Francisco, California

Before: SCHROEDER, FISHER,** and N.R. SMITH, Circuit Judges.

         Amistad Christiana Church and Pastors Joel Menchaca and Joleda Day

(together, the Appellants) appeal the district court’s order dismissing their

*
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
      The Honorable D. Michael Fisher, United States Circuit Judge for the U.S.
Court of Appeals for the Third Circuit, sitting by designation.
complaint under Federal Rule of Civil Procedure 12(b)(6). They say a music

festival, put on by Life is Beautiful, LLC and permitted by the City of Las Vegas,

was so intrusive that it violated their First Amendment rights to religious freedom

and speech and constituted a nuisance under Nevada law. We have jurisdiction

under 28 U.S.C. § 1291 and we affirm.

      We review de novo a Rule 12(b)(6) dismissal. In re Apple iPhone Antitrust

Litig., 846 F.3d 313, 317 (9th Cir. 2017). We ask if the complaint contains

sufficient factual matter, accepted as true, to state plausible claims for relief.

O’Brien v. Welty, 818 F.3d 920, 933 (9th Cir. 2016).

      The district court properly dismissed the Appellants’ First Amendment

claims against Life is Beautiful, a private entity, because it was not acting under

color of state law for purposes of 42 U.S.C. § 1983. The complaint is devoid of

allegations that state institutions mostly comprised Life is Beautiful, that state

officials dominated its decisionmaking, or that state institutions largely generated

its funds. See Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 954–55 (9th

Cir. 2008) (en banc). Further, we disagree with the Appellants’ contention that

Life is Beautiful acted “in lieu of a traditional state actor,” id. at 955, by taking

over from the City the public function of the regulation of sound and decibel

levels on public streets during the festival. By issuing Life is Beautiful a

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special-event permit under the Las Vegas Municipal Code, the City did not cede

its authority to regulate sound levels to Life is Beautiful — it exercised its

authority. Life is Beautiful had no say in setting maximum decibel levels or in

deciding the conditions upon which the City granted it the permit. So the public

function of regulating sound levels on the streets of Las Vegas remained under the

City’s control. The Appellants admit as much on appeal.

      The district court did not abuse its discretion by declining to exercise

supplemental jurisdiction over the Appellants’ state law nuisance claim against

Life is Beautiful, as the Appellants’ federal claims were properly dismissed. A

district court “may decline to exercise supplemental jurisdiction” over state law

claims once it has “dismissed all claims over which it has original jurisdiction.” 28

U.S.C. § 1367(c)(3); see Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146, 1156

(9th Cir. 2013).

      The Appellants do not ask us in their opening brief to reverse dismissal of

their § 1983 First Amendment claims against the City. We do not consider

“matters on appeal that are not specifically and distinctly argued in [the] opening

brief, are argued only in passing, or that constitute bare assertions without

supporting argument.” United States ex rel. Kelly v. Serco, Inc., 846 F.3d 325, 335



                                          3
(9th Cir. 2017) (internal quotation marks omitted). We exercise our discretion to

deem these arguments waived.

      The district court did not err in dismissing the Appellants’ state law

nuisance claim against the City. The City is immune from civil liability for suits

based on the exercise of its discretionary functions. Nev. Rev. Stat. § 41.032(2).

The City’s consideration of nuisance issues is a discretionary function that turns

on the weighing of certain public-policy factors. Ransdell v. Clark Cty., 192 P.3d

756, 761–64 (Nev. 2008) (en banc). There are no allegations of bad faith, so the

City is immune from the Appellants’ nuisance claim. Cf. Davis v. City of Las

Vegas, 478 F.3d 1048, 1059–60 (9th Cir. 2007).

      Finally, the Appellants’ argument that they were entitled to leave to amend

their complaint does not persuade us. Once the Appellants’ claims were dismissed,

the Appellants did not ask the district court for leave to amend their complaint.

Where a plaintiff never asks a district court for such leave, we can hardly say the

court abused its discretion in not granting it — the request on appeal to remand

with instructions to permit amendment “comes too late.” Alaska v. United States,

201 F.3d 1154, 1163–64 (9th Cir. 2000) (internal quotation marks and citation

omitted). Moreover, the district court was under no obligation to grant leave to



                                          4
amend because it clearly “determine[d] that the pleading could not possibly be

cured by the allegation of other facts.” Cook, Perkiss & Liehe, Inc. v. N. Calif.

Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).

      AFFIRMED.




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