                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 24 2015

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

ANDY’S BP, INC., a California                    No. 13-15409
corporation; SABEK, INC., a California
corporation; ANDY SABERI, an                     D.C. No. 5:12-cv-01631-LHK
individual,

              Plaintiffs - Appellants,           MEMORANDUM*

  v.

CITY OF SAN JOSE; JOSEPH
HORWEDEL, individually; AMIR
SHIRAZI, individually and as Trustee for
the Mohammad M. Shirazi Living Trust,
DBA Moe’s Stop,

              Defendants - Appellees.


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

                            Submitted March 12, 2015**
                             San Francisco, California



        *
             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).
Before:         W. FLETCHER and CHRISTEN, Circuit Judges and SILVER,***
                Senior District Judge.

      Plaintiff Andy’s BP, a gas station in San Jose, competes for business with a

gas station across the street, Moe’s Stop. Plaintiff brought a section 1983 suit,

alleging that the City of San Jose illegally favored Moe’s Stop by issuing citations

against Andy’s BP that it did not issue against Moe’s Stop, and by ignoring

evidence showing that Moe’s Stop had violated the terms of its conditional use

permit. The district court dismissed the complaint with prejudice. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

decision to dismiss, and we review for abuse of discretion the district court’s

decision to deny leave to amend. We affirm.

      “[A]n equal protection claim can in some circumstances be sustained even if

the plaintiff has not alleged class-based discrimination, but instead claims that she

has been irrationally singled out as a so-called ‘class of one.’” Engquist v. Or.

Dep’t of Agric., 553 U.S. 591, 601 (2008). “To succeed on [a] ‘class of one’ claim,

[Plaintiff] must demonstrate that the [City]: (1) intentionally (2) treated [Plaintiff]

differently than other similarly situated [persons], (3) without a rational basis.”

Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011). Plaintiff

          ***
             The Honorable Roslyn O. Silver, Senior District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.

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cannot state an equal protection claim based on the different treatment that Andy’s

BP and Moe’s Stop received because the two gas stations are not similarly situated.

First, Plaintiff never requested a conditional use permit, so the City could not have

enforced conditional use permit requirements differently for Moe’s Stop than it did

for Andy’s BP. Second, Plaintiff does not allege that Moe’s Stop violated the same

ordinances without receiving citations, and has not claimed that the City subjected

Andy’s BP to unequal treatment with respect to citations.

      Further, the district court may exercise its discretion to deny leave to amend

due to a plaintiff’s “repeated failure to cure deficiencies by amendments previously

allowed” or due to the “futility of amendment.” Carvalho v. Equifax Info. Servs.,

LLC, 629 F.3d 876, 892 (9th Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178,

182 (1962)). After Judge Ware dismissed Plaintiff’s complaint, Plaintiff failed to

follow his instruction to show in the amended complaint that the gas stations are

similarly situated. Further amendments would be futile because the facts already

pled show that the differences between Andy’s BP and Moe’s Stop are too great to

support a class-of-one claim.

      AFFIRMED.




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