                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                          JAN 03 2017

                                                                        MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS



MILLIE OGDEN,                                    No.   15-55373

              Plaintiff-Appellant,               D.C. No.
                                                 2:14-cv-03579-DMG-SH
 v.

WELLS FARGO BANK, NA,                            MEMORANDUM*

              Defendant,

 and

GRANT KWOK; YIM FONG KWOK;
HOWARD HSU,

              Defendants-Appellees.



MILLIE OGDEN,                                    No.   15-55374

              Plaintiff-Appellant,               D.C. No.
                                                 2:14-cv-03579-DMG-SH
 v.

WELLS FARGO BANK, NA,

              Defendant-Appellee,

 and

       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
GRANT KWOK; YIM FONG KWOK;
HOWARD HSU,

              Defendants.


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

                      Argued and Submitted December 5, 2016
                               Pasadena, California

Before: CALLAHAN, BEA, and IKUTA, Circuit Judges.

      Millie Ogden appeals from the district court’s dismissal with prejudice of

her Racketeer Influenced and Corrupt Organizations Act (“RICO”) claims against

Grant Kwok, Yim Fong Kwok, Howard Hsu (collectively, “the individual

defendants”), and Wells Fargo Bank, N.A. We have jurisdiction pursuant to 28

U.S.C. § 1291, and affirm.1

      To state a RICO claim, a plaintiff must allege, among other things, that an

enterprise’s racketeering activities proximately caused, i.e., “led directly to,” her

injuries. See Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461 (2006). Here,

Ogden’s Second Amended Complaint (“SAC”) does not plausibly allege that any

of the alleged enterprises’ actions proximately caused her injuries. See, e.g.,

      1
             As the parties are familiar with the facts and procedural history, we
restate them here only as necessary to explain our decision.
                                            2
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007))). Rather, the SAC indicates that Cesar Ascarrunz’s actions

directly led to Ogden’s alleged injuries and are therefore a superseding cause

interrupting the “direct relation between the injury asserted and the injurious

conduct alleged.” Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268 (1992).

While Ascarrunz may have been a part of one of the alleged enterprises at some

point in time, he clearly was not when he took his actions against Ogden. See, e.g.,

Reves v. Ernst & Young, 507 U.S. 170, 185 (1993) (stating that RICO “liability

depends on showing that the defendants conducted or participated in the conduct of

the ‘enterprise’s affairs,’ not just their own affairs” (quoting 18 U.S.C. § 1962(c)).

As a result, proximate causation is wanting in this case and the district court’s

dismissal of Ogden’s RICO claims against the individual defendants may be

affirmed on that ground. See, e.g., ASARCO, LLC v. Union Pac. R.R. Co., 765

F.3d 999, 1004 (9th Cir. 2014) (noting that a district court may be affirmed “on

any ground supported by the record”).

      Additionally, because the SAC fails to state a RICO claim against Grant

Kwok, it also fails to state a RICO claim against his former employer Wells Fargo.


                                           3
See Oki Semiconductor Co. v. Wells Fargo Bank, N.A., 298 F.3d 768, 773 (9th Cir.

2002) (“Only if [the employee] is liable for [the plaintiff’s] loss would we

additionally consider whether [the employer] was also liable under the doctrine of

respondeat superior.”).

      “Although leave to amend should be given freely, a district court may

dismiss without leave where a plaintiff’s proposed amendments would fail to cure

the pleading deficiencies and amendment would be futile.” Cervantes v.

Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). Ogden has

not identified a factual allegation that could plausibly get her RICO claims over the

proximate-cause hurdle. Therefore, dismissal with prejudice was warranted.

      AFFIRMED.




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