                                                                             FILED
                            NOT FOR PUBLICATION                               FEB 03 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CAPITOL WEST APPRAISALS LLC, on                   No. 10-35984
behalf of itself and all others similarly
situated,                                         D.C. No. 2:08-cv-01520-RAJ

              Plaintiff - Appellant,
                                                  MEMORANDUM *
  v.

COUNTRYWIDE FINANCIAL CORP; et
al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Richard A. Jones, District Judge, Presiding

                              Argued September 1, 2011
                             Submitted February 1, 2012
                                 Seattle, Washington

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

       Capitol West Appraisals, on behalf of itself and all others similarly situated,

appeals the district court’s Rule 12(b)(6) dismissal of this diversity action brought

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under the Class Action Fairness Act of 2005. Because the facts and procedural

history are familiar to the parties, we do not recite them here except as necessary to

explain our decision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

         The California common-law duty to provide fair procedures applies when

(1) a significant public interest is affected, and (2) the private company is a

“gatekeeper,” in that it possesses substantial power such that its conduct

“significantly impairs the ability of an ordinary, competent” worker to practice the

trade “in a particular geographic area, thereby affecting an important, substantial

economic interest.” Potvin v. Metro. Life Ins. Co., 997 P.2d 1153, 1160 (Cal.

2000).

         We need not decide whether Countrywide’s maintenance of the

Unacceptable Vendor List (“UVL”) implicates a significant public interest,

because the Second Amended Complaint (“SAC”) does not sufficiently allege that

Countrywide is a “gatekeeper” to performing appraisal services in Idaho. The

SAC alleges only that Countrywide is the largest originator of residential home

loans nationally, and contains no allegations specific to Idaho. Indeed, the SAC

admits that both Wade Massey and Capitol West continue to perform appraisal

services despite Massey’s presence on the UVL.

         In addition, the SAC fails to allege that Massey’s presence on the UVL

affected an “important, substantial economic interest.” Capitol West alleges only a
monetary loss, with no context as to what portion of its overall business this loss

represented. Therefore, Capitol West alleges insufficient facts to support applying

the duty of fair procedures to Countrywide.

       With respect to the California common-law tort of intentional interference

with prospective economic advantage, the SAC fails to plead Countrywide’s

knowledge of an economic relationship between Capitol West and a third party, a

required element. See Korea Supply Co. v. Lockheed Martin Corp., 63 P.3d 937,

950 (Cal. 2003). The SAC merely states that Countrywide had knowledge of

economic relationships between Capitol West and mortgage brokers and lenders

without any further specific allegations. These conclusory statements are not

entitled to the presumption of truth, and are insufficient to plead Countrywide’s

knowledge. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009).

       “In deciding whether justice requires granting leave to amend, factors to be

considered include the presence or absence of undue delay, bad faith, dilatory

motive, repeated failure to cure deficiencies by previous amendments, undue

prejudice to the opposing party and futility of the proposed amendment.” Moore v.

Kayport Package Exp. Inc., 885 F.2d 531, 538 (9th Cir. 1989). Capitol West failed

even to request the opportunity to amend its complaint below, and did so here only

in its reply brief.

AFFIRMED.
