                                                                           FILED
                           NOT FOR PUBLICATION                             FEB 23 2015

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



                            FOR THE NINTH CIRCUIT


ROBERT FACCIOLA, Lead Plaintiff on               No. 12-17761
behalf of Mortgages Ltd. Investor Class;
ROBERT MAURICE FACCIOLA
TRUST DATED 12/2/94, Lead Plaintiff              D.C. No. 2:10-cv-01025-FJM
on behalf of Mortgages Ltd. Investor
Class; HONEYLOU C. REZNIK, Lead
Plaintiff on behalf of Mortgages Ltd.            MEMORANDUM*
Investor Class; MORRIS REZNIK AND
HONEYLOU C. REZNIK TRUST, Lead
Plaintiffs on behalf of Mortgages Ltd.
Investor Class; JEWEL BOX
INCORPORATED, Lead Plaintiff on
behalf of Mortgages Ltd. Investor Class;
JEWEL BOX LOAN COMPANY
INCORPORATED, Lead Plaintiff on
behalf of Mortgages Ltd. Investor Class;
H-M INVESTMENTS LLC, Lead Plaintiff
on behalf of Mortgages Ltd. Investor
Class; FRED C. HAGEL AND
JACQUELINE M. HAGEL REVOCABLE
LIVING TRUST DATES 3/15/95, Lead
Plaintiffs on behalf of Radical Bunny
Investor Class,

              Plaintiffs - Appellants,

  v.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
GREENBERG TRAURIG LLP,

             Defendant,

  And

CBIZ, INC., a Delaware corporation;
CBIZ MHM, LLC, a Delaware limited
liability company; MAYER HOFFMAN
MCCANN P.C., a Missouri professional
corporation,

             Defendants - Appellees.


                  Appeal from the United States District Court
                            for the District of Arizona
              Frederick J. Martone, Senior District Judge, Presiding

                     Argued and Submitted February 5, 2015
                           San Francisco, California

Before: TALLMAN and RAWLINSON, Circuit Judges, and DEARIE, Senior
District Judge.**

      Plaintiffs–Appellants appeal the dismissal of their putative Arizona securities

and negligent misrepresentation class action against Mayer Hoffman McCann P.C.

(Mayer Hoffman) and its affiliated corporations, CBIZ, Inc. and CBIZ MHM, LLC

(collectively CBIZ). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.



        **
             The Honorable Raymond J. Dearie, Senior United States District
Judge for the Eastern District of New York, sitting by designation.

                                         2
      With respect to the Arizona Securities Act claim, no reasonable inference may

be drawn from the amended allegations that Mayer Hoffman acted outside the

ordinary course of its profession when issuing the contested audit reports or that it

“participated in or induced” Appellants’ investments with Mortgages Ltd. or Radical

Bunny, LLC. Ariz. Rev. Stat. § 44-2003(A); Standard Chartered PLC v. Price

Waterhouse, 190 Ariz. 6, 21-22 (Ct. App. 1996).

      Because Appellants made the tactical decision to pursue only their Arizona

Securities Act claims in their Amended Complaint, the appeal of the dismissal of their

other claims against Mayer Hoffman—for violation of the Arizona Investment

Management Act (AIMA) and common law negligent misrepresentation—may rely

only upon the allegations contained in the Original Complaint. The district court

properly dismissed Appellants’ claim brought under the AIMA because no reasonable

inference may be drawn that any entity—including Mayer Hoffman, Mortgages Ltd.,

or Radical Bunny, LLC—engaged in investment advisory services. Ariz. Rev. Stat.

§§ 44-3241, 44-3101(5). Appellants’ negligent misrepresentation claim fails because

the allegations in the Original Complaint are insufficient to demonstrate, in

accordance with Arizona’s adoption of the Restatement (Second) of Torts § 552

(1979), Standard Chartered, 190 Ariz. at 29, that Appellants were part of the “limited

group of persons” that Mayer Hoffman’s audit reports were intended to benefit. Bily


                                          3
v. Arthur Young & Co., 3 Cal. 4th 370, 392, 410-11 (1992); see also Glenn K. Jackson

Inc. v. Roe, 273 F.3d 1192, 1200 (9th Cir. 2001).

      Absent a cognizable claim for primary liability against Mayer Hoffman,

Appellants cannot successfully allege a claim for statutory or common law secondary

liability against CBIZ. Ariz. Rev. Stat. § 44-1999(B); Grand v. Nacchio, 225 Ariz.

171, 176 (2010) (en banc).

      AFFIRMED.




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