                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                               MAR 28 2014

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

MARTIN F. ROONEY, individually and               No. 11-17694
on behalf of all others similarly situated,
                                                 D.C. No. 5:10-cv-00905-LHK
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

SIERRA PACIFIC WINDOWS, a division
of Sierra Pacific Industries, a California
corporation,

              Defendant - Appellee.


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

                     Argued and Submitted October 17, 2013
                           San Francisco, California

Before: THOMAS and McKEOWN, Circuit Judges, and KENDALL, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Virginia M. Kendall, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
      Martin Rooney, individually and putatively on behalf of others similarly

situated, appeals the district court’s order granting judgment on the pleadings to

Sierra Pacific Windows (“SPW”) on Rooney’s claims under the Magnuson-Moss

Warranty Act and California’s Unfair Competition Law (“UCL”). Rooney also

appeals the district court’s order denying Rooney’s motion for leave to file a

second amended complaint. This is a diversity action under 28 U.S.C. § 1332(d)(2)

arising out of the purchase and subsequent repair or replacement of windows

covered by a written warranty. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      Rooney argues that SPW failed to provide the SPW Warranty in violation of

the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq. Specifically, Rooney

complains that SPW violated the “Pre-Sale Rule,” which requires that sellers of

consumer products with written warranties make the text of the warranties readily

available to prospective buyers. 16 C.F.R. § 702.3. We disagree. Whether SPW

complied with 16 C.F.R. § 702.3 is irrelevant here because Rooney has not

suffered an injury-in-fact as result of SPW’s failure to provide the SPW Warranty.

      At the time of purchase, Rooney understood that the warranty for his

windows did not cover water penetration of the window unit. Thus, even if he had

pled that the purchased windows were non-tested, Rooney still would not have


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received coverage under the Terms and Conditions Warranty because his problem

with his purchased windows stemmed from water penetration. Nonetheless,

Rooney received warranty coverage based on the SPW Warranty.

      Rooney is in the same position he would have been in had SPW provided the

SPW Warranty at the time of purchase. In fact, the SPW Warranty placed Rooney

in a better position than he would have been under the Terms and Conditions

Warranty alone, which is the warranty Rooney believed applied to his purchased

windows. SPW paid forty percent of the repair or replacement costs under the SPW

Warranty whereas SPW did not have to pay anything under the Terms and

Conditions Warranty. Consequently, Rooney received more than he bargained for

and could not have suffered an injury-in-fact under either the Magnuson-Moss

Warranty Act or the UCL. See Birdsong v. Apple, Inc., 590 F.3d 955, 961 (9th Cir.

2009) (explaining that plaintiffs could not establish an injury-in-fact when they

were not deprived of an agreed-upon benefit). Therefore, we affirm the district

court’s grant of judgment on the pleadings to SPW.

      We also hold that the district court did not abuse its discretion in concluding

that Rooney failed to show good cause to modify the district court’s scheduling

order. Generally, we review a district court’s denial of leave to amend for an abuse

of discretion. In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716,


                                          3
736 (9th Cir. 2013). But we review a district court’s denial of leave to amend on

grounds of futility de novo. Hildes v. Arthur Andersen LLP, 734 F.3d 854, 859 (9th

Cir. 2013).

      In this case, the district court entered a scheduling order that required

Rooney to file any proposed amendments to his complaint by December 2, 2010.

Rooney received a document production from SPW on May 3, 2011. This

production contained nearly all of the documents Rooney asked for and Rooney

had sufficient information to amend the complaint. Yet Rooney waited another

three months—until July 21, 2011 to seek leave to file his second amended

complaint. This was after SPW filed its motion for judgment on the pleadings. The

district court concluded that Rooney was not diligent in seeking leave to file a

second amended complaint. This was not an abuse of discretion in view of

Rooney’s undue delay, the prejudice to SPW, which had already filed a motion for

judgment on the pleadings, and futility of the amendment. See In re W. States

Wholesale Natural Gas Antitrust Litig., 715 F.3d at 738 (“This court considers the

following five factors to assess whether to grant leave to amend: (1) bad faith, (2)

undue delay, (3) prejudice to the opposing party, (4) futility of the amendment, and

(5) whether plaintiff has previously amended his complaint.”) (internal quotation

marks and citation omitted).


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      With respect to the Magnuson-Moss Warranty Act claim, SPW’s alleged

technical violation, standing alone, did not cause the harm alleged by Rooney or

the members of the putative class. The Magnuson-Moss Warranty Act allows “a

consumer who is damaged by the failure of a supplier, warrantor, or service

contractor to comply with any obligation under this chapter . . . [to] bring suit for

damages and other legal and equitable relief.” 15 U.S.C. § 2310(d)(1). According

to his first amended complaint, both sub-classes “paid money to SPW to have the

Window Product(s) repaired or replaced.” But SPW’s failure to provide the SPW

Warranty did not cause this harm. The repair or replacement of windows would

have been necessary even if SPW had displayed the warranty at the time of

purchase. Consequently, SPW's failure to provide the SPW Warranty to consumers

could not have caused the harm alleged. The same is true with respect to the UCL.

Consequently, there can be no causal connection between SPW’s technical

violation of the Magnuson-Moss Warranty Act and the payments made to repair or

replace windows. As a result, Rooney lacks standing. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992).

      And, as the district court correctly noted, Rooney could not amend his

complaint to allege harm caused at the time of purchase based on consumers

paying for a warranty that SPW did not disclose. Rooney conceded that all of the


                                           5
consumers purchased their windows more than four years before Rooney filed his

initial complaint. Because the statute of limitations for both of Rooney’s claims is

four years, any such amendment would be time-barred. See Hooper v. Lockheed

Martin Corp., 688 F.3d 1037, 1044 (9th Cir. 2012) (explaining that a federal court

applies the most closely analogous state statute of limitations when a federal statute

contains no express statute of limitations); Mexia v. Rinker Boat Co., Inc., 174 Cal.

App. 4th 1297, 1306 (2009) (providing that an action for breach of warranty under

the Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1790 et seq., has

four-year statute of limitations); Cal. Bus. & Prof. Code § 17208.

      AFFIRMED.




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