                           NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           JUN 19 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
GAIL FIALKOV, Individually and on                No.   15-35143
Behalf of All Others Similarly Situated,
                                                 D.C. No. 2:13-cv-02039-RSM
              Plaintiff,

 and                                             MEMORANDUM*

SEAFARERS PENSION PLANS;
OKLAHOMA FIREFIGHTERS
PENSION AND RETIREMENT
SYSTEM; UNITED INDUSTRIAL
WORKERS PENSION PLAN; MCS
SUPPLEMENTARY PENSION PLAN;
SEAFARERS OFFICERS AND
EMPLOYEES PENSION PLAN,

              Plaintiffs-Appellants,

 v.

MICROSOFT CORPORATION;
STEVEN A. BALLMER; PETER KLEIN;
TAMI RELLER,

              Defendants-Appellees.


                    Appeal from the United States District Court


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                      for the Western District of Washington
                    Ricardo S. Martinez, Chief Judge, Presiding

                             Submitted June 15, 2017**
                               Seattle, Washington

Before: BYBEE, M. SMITH, and CHRISTEN, Circuit Judges.

      Appellants appeal the district court’s dismissal of all claims for failure to

state a claim in this securities-fraud case brought against Appellees for statements

made related to the Microsoft Surface and its inventory levels. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm the district court.

      To survive a motion to dismiss a securities fraud claim, Appellants must

have alleged: (1) a material misrepresentation or omission, (2) made with scienter,

(3) in connection with the purchase or sale of a security, (4) on which Appellants

relied, (5) resulting in economic loss, and (6) loss causation. In re NVIDIA Corp.

Sec. Litig., 768 F.3d 1046, 1052 (9th Cir. 2014). In their complaint, Appellants

needed to “specify each statement alleged to have been misleading” and “the

reason or reasons why the statement is misleading.” 15 U.S.C. § 78u-4(b)(3)(A).

They are subject to “[m]ore exacting pleading requirements” than regular causes of

action, and we require pleading “with particularity.” Tellabs, Inc. v. Makor Issues

& Rights, Ltd., 551 U.S. 308, 313 (2007). “In few other areas are motions to




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dismiss for failure to state a claim . . . so powerful.” Ronconi v. Larkin, 253 F.3d

423, 437 (9th Cir. 2001).

      “Rule 10b-5 prohibits ‘only misleading and untrue statements, not

statements that are incomplete.’” Police Ret. Sys. v. Intuitive Surgical, Inc., 759

F.3d 1051, 1061 (9th Cir. 2014). The district court correctly held that Appellants

failed to carry their burden of pleading, with particularity, misleading or untrue

statements on the part of Appellees. When viewed in context, none of the

identified statements created “an impression of a state of affairs that differ[ed] in a

material way from the one that actually exist[ed].” Brody v. Transitional Hosps.

Corp., 280 F.3d 997, 1006 (9th Cir. 2002).

      AFFIRMED.




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