                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 3, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    KATHY LUNDAHL,

                Plaintiff-Appellant,

    v.                                                  No. 11-6050
                                                 (D.C. No. 5:09-CV-01186-F)
    PENNSYLVANIA                                        (W.D. Okla.)
    MANUFACTURERS ASSOCIATION
    INSURANCE COMPANY, a foreign
    corporation,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.



         Kathy Lundahl appeals from the district court’s order denying leave to

amend her complaint on futility grounds and from the summary judgment entered

in favor of Pennsylvania Manufacturers Association Insurance Co. (“PMAIC”).

Her case was based on PMAIC’s denial of her claim for insurance coverage of a


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
burglary to her apartment. Exercising diversity jurisdiction under 28 U.S.C.

§§ 1291 & 1332(a)(1), we affirm.

                                   I. Background

      The parties are familiar with the facts, so we provide only a brief summary

necessary to our review. The material facts are undisputed, except as noted. The

disputed facts are construed in favor of Ms. Lundahl.

      Ms. Lundahl purchased a renters’ insurance policy when she moved into an

apartment in Oklahoma City. She authorized a monthly withdrawal of $12 from

her checking account for the policy. At the time she purchased the policy, she

was given a brochure from the apartment manager with a brief description of the

insurance coverage. As relevant here, the brochure stated that the insurance

covered burglary, but that there were “limits and exclusions to the coverage. It

[was] not an ‘all risk’ coverage.” Aplt. App. Vol. 2, at 502.

      According to PMAIC, on July 13, 2009, it mailed to Ms. Lundahl a

Certificate of Insurance (“Certificate”) and a Summary of Coverage

(“Summary”), both of which provided burglary coverage “provided there are

visible marks of . . . forcible entry upon the exterior of the premises.” Id. at 457,

482. Ms. Lundahl testified that she did not recall whether she received or saw the

brochure and that she did not receive the Certificate or the Summary. Id. Vol. 1,

at 209, 247-48. The Bader Company (“Bader”) received and decided insurance

claims made on the renters’ policy at issue.

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      On Wednesday, August 12, 2009, Ms. Lundahl noticed the lock to her

apartment was hard to turn. She asked the apartment management to change the

locks. Several days later, on Sunday, August 16, Ms. Lundahl discovered that

several small items were missing from her apartment—a cell phone, a wedding

ring, a passport, a camera, a watch, a key fob, and a garage door opener. She

filed a police report, and two days later, on August 18, telephoned Bader to report

a burglary at her apartment.

      Upon receipt of this information, Bader requested that Ms. Lundahl

complete the claim forms and provide various documents, including the police

report and documents showing the value of the missing items. In addition to

considering Ms. Lundahl’s statement and documents, Bader reviewed the police

report and interviewed the apartment manager by telephone. By letter dated

October 22, 2009, Bader denied Ms. Lundahl’s claim because its investigation

had revealed no evidence of visible signs of forced entry, as required by the

PMAIC policy for burglary coverage.

      Ms. Lundahl then sent Bader photos of her door and the lock taken after the

lock had been changed, requesting reconsideration. Bader declined to change its

decision.

      Ms. Lundahl filed the underlying lawsuit, alleging that PMAIC’s refusal to

cover her burglary losses breached the duty of good faith and fair dealing. She

sought compensatory and punitive damages.

                                         -3-
      Discovery ensued. Eventually, Ms. Lundahl filed a motion to amend her

complaint to allege claims under the Racketeer Influenced and Corrupt

Organization Act (“RICO”), 18 U.S.C. §§ 1961-1968, and for fraud under

Oklahoma state law. PMAIC filed a motion for summary judgment.

      The district court denied Ms. Lundahl’s motion to amend her complaint,

concluding that amendment would be futile because the proposed amended

complaint was subject to dismissal for failure to state a claim under RICO or state

law. In ruling on the RICO claims, the district court held that the proposed

amended complaint failed to allege with sufficient particularity under

Fed. R. Civ. P. 9(b) the requisite two predicate acts, here, mail fraud and wire

fraud. Therefore, the RICO conspiracy claim also failed. Similarly, the state law

fraud claim failed for lack of particularity under Rule 9(b).

      In a subsequent order, the district court then granted PMAIC’s motion for

summary judgment on Ms. Lundahl’s surviving cause of action that PMAIC had

breached its duty of good faith and fair dealing by failing to conduct a reasonable

investigation of her insurance claim. The court rejected Ms. Lundahl’s argument

that the insurance documents were ambiguous, thereby also rejecting her claim

that by inserting an ambiguous term in its contracts, PMAIC exhibited bad faith

or that the ambiguity created a dispute as to whether the burglary was covered by

the policy. After discussing the investigation Bader conducted on behalf of

PMAIC, the court held that Ms. Lundahl had presented insufficient evidence that

                                         -4-
PMAIC overlooked material facts in conducting the investigation or that a more

thorough investigation would have produced additional relevant information that

would have resulted in a different disposition of her claim. Accordingly, the

court held that the undisputed evidence did not support a finding that PMAIC’s

investigation was inadequate, and therefore PMAIC was entitled to summary

judgment on Ms. Lundahl’s bad faith claim.

      Ms. Lundahl appeals the order denying her request to amend her complaint.

She contends that the district court erred in determining that her proposed

amended complaint failed to allege with sufficient particularity her RICO and

state law fraud claims. In addition, she asserts that she should have been granted

leave to file a supplemental pleading to satisfy the particularity requirement.

      Ms. Lundahl also appeals the order granting summary judgment in favor of

PMAIC, arguing that the district court erred in not construing the ambiguous

insurance contract in her favor. She further argues that the district court weighed

disputed material facts and decided them against her.

                                   II. Discussion

      “[W]e generally review for abuse of discretion a district court’s denial of

leave to amend a complaint.” Cohen v. Longshore, 621 F.3d 1311, 1314

(10th Cir. 2010). Where leave was denied “based on a determination that

amendment would be futile, our review for abuse of discretion includes de novo

review of the legal basis for the finding of futility.” Id. (internal quotation marks

                                         -5-
omitted). Consequently, we apply the de novo standard to ascertain whether the

proposed amended complaint could survive dismissal. See id. at 1314-15. “To

survive a [motion to dismiss for failure to state a claim], a plaintiff must allege

sufficient facts to make her claim for relief plausible on its face. . . . If the

allegations are so general that they encompass a wide swath of conduct, much of

it innocent, then the plaintiff[] [has] not nudged [her] claims across the line from

conceivable to plausible.” Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir.

2010) (citations omitted) (internal quotation marks and ellipses omitted).

      “We review the district court’s grant of summary judgment de novo,

applying the same standards that the district court should have applied.”

Cohen-Esrey Real Estate Servs., Inc. v. Twin City Fire Ins. Co., 636 F.3d 1300,

1302 (10th Cir. 2011) (internal quotation marks omitted). Summary judgment is

appropriate if “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “We examine the record and all reasonable inferences that

might be drawn from it in the light most favorable to the non-moving party.”

Cohen-Esrey Real Estate Servs., Inc., 636 F.3d at 1302 (internal quotation marks

omitted). We apply the substantive law of the forum state, Oklahoma, to the state

law claims. See id.

      Having carefully reviewed the briefs, the record, and the applicable law in

light of the above standards we AFFIRM the district court’s order denying leave

                                           -6-
to amend the complaint and its entry of summary judgment in favor of PMAIC for

substantially the reasons stated in its Orders issued on February 2, 2011. The

district court denied leave to amend because amendment would have been futile,

given the proposed amended complaint’s failure to plead the RICO and fraud

claims with sufficient particularity under Rule 9(b). The court granted summary

judgment in PMAIC’s favor on the bad faith claim, holding that the undisputed

evidence showed the existence of a legitimate dispute over whether the burglary

was covered by the policy, and that PMAIC’s investigation was reasonable under

the circumstances. Therefore, summary judgment was appropriate because

Ms. Lundahl’s evidence did not show bad faith or unreasonable conduct on the

part of PMAIC.

      As for Ms. Lundahl’s claim that she should have been granted leave to file

a supplemental pleading to satisfy the particularity requirement, she has “nowhere

explained how a proposed amendment would cure the deficiencies identified by

the district court.” Hall v. Witteman, 584 F.3d 859, 868 (10th Cir. 2009). She

has not attempted to demonstrate to the district court or this court how she could

successfully again amend her complaint. Therefore, the district court did not

abuse its discretion by not inviting another amended complaint. See id.




                                        -7-
                        III. Conclusion

The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Timothy M. Tymkovich
                                          Circuit Judge




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