                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 26 2011

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




                            FOR THE NINTH CIRCUIT



TEAM ENTERPRISES, LLC,                           No. 10-16486

              Plaintiff - Appellant,             D.C. No. 1:08-cv-00872-LJO-SMS

  v.
                                                 MEMORANDUM *
WESTERN INVESTMENT REAL
ESTATE TRUST, AKA Western
Properties Trust,

              Defendant,

  and

MULTIMATIC CORPORATION, now
known as Kirrberg Corporation;
MULTIMATIC, LLC,

              Defendants - Appellees.




                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                        Argued and Submitted May 13, 2011
                             San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: O’SCANNLAIN and GOULD, Circuit Judges, and ST. EVE, District
Judge.**

       Team Enterprises, LLC (“Team”) appeals from the district court’s grant of

judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) to

Multimatic Corporation (“Multimatic”). As the facts are known to the parties, we

repeat them here only as necessary.

       Team argues that Multimatic is liable as an “arranger” under the

Comprehensive Environmental Response, Compensation, and Liability Act

(“CERCLA”). See 42 U.S.C. § 9607(a)(3). Accepting Team’s factual allegations

as true, Team has failed to “‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 554, 570 (2007)). Specifically, Team has failed to allege facts

showing that Multimatic sold Team the Solo Plus dry cleaning machine (“Solo

Plus”) for the purpose of disposing of perchlorethylene or that Multimatic

exercised control over the disposal process. See Team Enters., LLC v. W. Inv. Real

Estate Trust, No. 10-16916, — F.3d — (9th Cir. 2011); see also Burlington N. &

Santa Fe Ry. Co. v. United States, 129 S. Ct. 1870, 1880 (2009). Multimatic is



       **
            The Honorable Amy J. St. Eve, United States District Judge for the
Northern District of Illinois, sitting by designation.

                                            2
therefore entitled to judgment as a matter of law. See Fajardo v. Cnty. of Los

Angeles, 179 F.3d 698, 699 (9th Cir. 1999).

      Team next argues that Multimatic is liable for nuisance under California law

because it “creat[ed ]or assist[ed] to create and maintain the nuisance.” Selma

Pressure Treating Co. v. Osmose Wood Preserving Co. of Am., Inc., 271 Cal. Rptr.

596, 607 (Ct. App. 1990), overruled on other grounds by Johnson v. Am. Standard,

Inc., 179 P.3d 905, 913–14 (Cal. 2008). Nevertheless, Team did not allege facts

that, accepted as true, would show that Multimatic engaged in the “kinds of

affirmative acts or instructions” that would “support a finding that [Multimatic]

assisted in creating a nuisance.” City of Modesto Redev. Agency v. Superior Court,

13 Cal. Rptr. 3d 865, 874 (Ct. App. 2004); see also Team Enters., — F.3d at —.

Accordingly, we are satisfied that Multimatic is entitled to judgment as a matter of

law on Team’s nuisance claim.

      Finally, Team argues that the district court erred in granting judgment on the

pleadings to Multimatic on Team’s trespass claim. Team’s complaint fails,

however, to allege facts indicating that Multimatic placed the Solo Plus in Team’s

store without Team’s authorization. Given that “[t]he essence of the cause of

action for trespass is an ‘unauthorized entry’ onto the land of another,” we

conclude that Multimatic is entitled to judgment as a matter of law on Team’s


                                          3
trespass claim. Martin Marietta Corp. v. Ins. Co. of N. Am., 47 Cal. Rptr. 2d 670,

681 (Ct. App. 1995) (citation and internal quotation marks omitted); see also Team

Enters., — F.3d at —.

      Multimatic asks us to reverse the district court’s decision denying

Multimatic’s motion to amend its complaint. The power to grant leave to amend is

“entrusted to the discretion of the district court.” Serra v. Lappin, 600 F.3d 1191,

1200 (9th Cir. 2010). In light of our decision in Team Enterprises, we conclude

that amendment would be futile, id. at 1200, and thus the district court did not

abuse its discretion.1

      For the foregoing reasons, the decision of the district court is AFFIRMED.




      1
        Defendants-Appellees’ Motion to Strike Declaration of Christine Barber in
Support of Reply Brief of Appellant Team Enterprises, LLC and Team’s
Supplemental Excerpts of Record, filed with this court on December 20, 2010, is
denied as moot.

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