FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF MISSOURI EX REL. CHRIS

KOSTER, Attorney General; STATE

OF NEBRASKA EX REL. JON BRUNING,

Attorney General; STATE OF

OKLAHOMA EX REL. E. SCOTT

PRUITT, Attorney General; STATE OF

ALABAMA EX REL. LUTHER

STRANGE, Attorney General;

COMMONWEALTH OF KENTUCKY EX

REL. JACK CONWAY, Attorney

General; TERRY E. BRANSTAD,

Governor of State of Iowa,

Plaintiffs-Appellants,

v.

KAMALA D. HARRIS, in her official

capacity as Attorney General of the

State of California; KAREN ROSS, in

her official capacity as Secretary of

the California Department of Food

and Agriculture,

Defendants-Appellees,

and

HUMANE SOCIETY OF THE UNITED

STATES; ASSOCIATION OF

CALIFORNIA EGG FARMERS,

Intervenor-Defendants-Appellees.

No. 14-17111

D.C. No.

2:14-cv-00341-

KJM-KJN

OPINION
2 STATE OF MISSOURI EX REL.KOSTER V. HARRIS

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, District Judge, Presiding

Argued and Submitted October 19, 2016

San Francisco, California

Filed November 17, 2016

Before: Susan P. Graber and Mary H. Murguia, Circuit

Judges, and Raner C. Collins,*

 Chief District Judge.

Opinion by Judge Graber

SUMMARY**

Civil Rights

The panel affirmed the district court’s dismissal of an

action for lack of parens patriae standing but remanded with

instructions to dismiss without prejudice.

Plaintiffs are six states seeking to block enforcement of

California laws and regulations prescribing standards for the

conditions under which chickens must be kept in order for

their eggs to be sold in the state. Plaintiffs sought to block

the laws before they took effect. The panel held that the

* The Honorable Raner C. Collins, Chief United States District Judge

for the District of Arizona, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
STATE OF MISSOURI EX REL.KOSTER V. HARRIS 3

plaintiffs failed to establish parens patriae standing because:

(1) they failed to articulate an interest apart from the interests

of private egg producers, who could have filed an action on

their own behalf; (2) the allegations about potential economic

effects of the challenged laws, after implementation, were

necessarily speculative; and (3) the allegations of

discrimination were misplaced because the laws do not

distinguish among eggs based on their state of origin. The

panel further held that the district court did not err by denying

leave to amend because plaintiffs would be unable to assert

parens patriae standing in an amended complaint. 

The panel held that because in theory, plaintiffs could

allege post-effective-date facts that might support standing,

the complaint should have been dismissed without prejudice.

COUNSEL

J. Andrew Hirth (argued), Deputy General Counsel, Office of

the Missouri Attorney General, Jefferson City, Missouri, for

Plaintiffs-Appellants.

Paul Stein (argued) and Stephanie F. Zook, Deputy Attorneys

General; Constance L. LeLouis, SupervisingDeputyAttorney

General; Douglas J. Woods, Senior Assistant Attorney

General; Kamala D. Harris, Attorney General; Office of the

Attorney General, San Francisco, California; for DefendantsAppellees.

Bruce Wagman (argued), Schiff Hardin LLP, San Francisco,

California; Rebecca Cary and Peter A. Brandt, Humane

Society of the United States, Washington, D.C.; Jonathan Y.

Ellis and J. Scott Ballenger, Latham & Watkins LLP,
4 STATE OF MISSOURI EX REL.KOSTER V. HARRIS

Washington, D.C.; for Intervenor-Defendant-Appellee

Humane Society of the United States.

Carl Nichols (argued), Thomas G. Sprankling, Adam I. Klein,

and Francesco Valenti, Wilmer Cutler Pickering Hale and

Dorr LLP, Washington, D.C.; Randall R. Lee, Wilmer Cutler

Pickering Hale and Dorr LLP, Los Angeles, California; for

Intervenor-Defendant-AppelleeAssociation of California Egg

Farmers.

Sean D. Reyes, Utah Attorney General; Parker Douglas, Utah

Federal Solicitor; Utah Attorney General’s Office, Salt Lake

City, Utah; for Amicus Curiae State of Utah.

Timothy S. Bishop, Michael B. Kimberly, and James F.

Tierney, Mayer Brown LLP, Washington, D.C.; Ellen B.

Steen and Danielle Hallcom Quist, America Farm Bureau

Federation, Washington, D.C.; for Amicus Curiae American

Farm Bureau Federation.

Diane L. McGimsey, Edward E. Johnson, Janet Y. Galeria,

and Jonathon D. Townsend, Sullivan & Cromwell LLP, Los

Angeles, California, for Amici Curiae Animal Legal Defense

Fund; Compassion Over Killing, Inc.; and Farm Sanctuary,

Inc.
STATE OF MISSOURI EX REL.KOSTER V. HARRIS 5

OPINION

GRABER, Circuit Judge:

California enacted laws and regulations prescribing

standards for the conditions under which chickens must be

kept in order for their eggs to be sold in the state. Plaintiffs

are six states, which sued to block enforcement of those laws

and regulations before they took effect. We agree with the

district court that Plaintiffs lacked standing to bring this case

as parens patriae. We also hold that the district court did not

err in denying Plaintiffs leave to amend their complaint. But

because the action should have been dismissed without

prejudice, we affirm but remand with instructions to dismiss

the action without prejudice.

In the 2008 general election, California voters adopted

Proposition 2, which enacted new standards beginning on

January 1, 2015, for housing farm animals within California

including, as relevant here, egg-laying hens. Cal. Health &

Safety Code §§ 25990–94. Under Proposition 2, hens may

not be confined for the majority of any day “in a manner that

prevents [them] from: (a) Lying down, standing up, and fully

extending [their] limbs; and (b) Turning around freely.” Id.

§ 25990. A violation of these standards is punishable by a

$1,000 fine or imprisonment of 180 days in county jail, or

both. Id. § 25993.

In 2010, California’s legislature adopted Assembly Bill

1437 (“AB1437”), which mandated, also beginning on

January 1, 2015, that “a shelled egg shall not be sold or

contracted for sale for human consumption in California if the

seller knows or should have known that the egg is the product

of an egg-laying hen that was confined on a farm or place that

is not in compliance with animal care standards set forth in
6 STATE OF MISSOURI EX REL.KOSTER V. HARRIS

[Proposition 2].” Cal. Health & Safety Code § 25996. 

Therefore, all eggs sold in California must comply with

Proposition 2. In 2013, the California Department of Food

and Agriculture promulgated egg-related regulations,

includingsalmonella prevention measures and minimum cage

sizes for egg-laying hens, all of which also carried an

effective date of January 1, 2015. Cal. Code Regs. tit. 3,

§ 1350(d)(1).

On February 3, 2014, the State of Missouri filed a

complaint in the Eastern District of California, asking the

court to declare AB1437 and California Code § 1350(d)(1)

(collectively the “Shell Egg Laws”) invalid, as violating the

Commerce Clause or as preempted by federal statute, and to

enjoin California from enforcing the laws. Plaintiffs then

filed their First Amended Complaint (the “complaint”),

joining the States of Nebraska, Oklahoma, Alabama, and

Kentucky and the Governor of Iowa as additional plaintiffs. 

The Humane Society of the United States and the Association

of California Egg Farmers (“Intervenors”) moved to intervene

as defendants, which the court allowed. Defendants filed a

motion to dismiss for lack of subject matter jurisdiction;

Intervenors filed their own, similar motions. The district

court granted the motions to dismiss, with prejudice. The

court concluded that Plaintiffs lacked standing as parens

patriae, held that their claim was not justiciable, and denied

leave to amend as futile. Plaintiffs timely appeal.

A. Parens Patriae Standing

States asserting parens patriae standing must meet both

the basic requirements of Article III standing and the unique

requirements of that doctrine. Table Bluff Reservation (Wiyot

Tribe) v. Philip Morris, Inc., 256 F.3d 879, 885 (9th Cir.

2001). “To establish Article III standing, an injury must be
STATE OF MISSOURI EX REL.KOSTER V. HARRIS 7

concrete, particularized, and actual or imminent; fairly

traceable to the challenged action; and redressable by a

favorable ruling.” Clapper v. Amnesty Int’l USA, 133 S. Ct.

1138, 1147 (2013) (internal quotation marks omitted). In a

parens patriae case, there are two additional requirements. 

First, “the State must articulate an interest apart from the

interests of particular private parties, i.e., the State must be

more than a nominal party.” Alfred L. Snapp & Son, Inc. v.

Puerto Rico ex rel. Barez (“Snapp”), 458 U.S. 592, 607

(1982). Second, “[t]he State must express a quasi-sovereign

interest.” Id. On de novo review, Habeas Corpus Res. Ctr.

v. U.S. Dep’t of Justice, 816 F.3d 1241, 1247 (9th Cir. 2016),

we conclude that Plaintiffs have not met the first requirement. 

We therefore need not, and do not, reach the second part of

the test, nor do we reach the issue of ripeness.

There are no “definitive limits on the proportion of the

population of the State that must be adversely affected.” 

Snapp, 458 U.S. at 607. But “more must be alleged than

injury to an identifiable group of individual residents.” Id.

“[T]he indirect effects of the injury must be considered as

well in determining whether the State has alleged injury to a

sufficiently substantial segment of its population.” Id.1

1

It is unclear whether “substantial segment of the population” and

“interest apart from the interest of particular private parties” are separate

elements of standing. See, e.g., Washington v. Chimei Innolux Corp.,

659 F.3d 842, 847 (9th Cir. 2011) (describing these as separate

requirements). Snapp itself suggests that “substantial segment” may be

merely an additional explanation ofthe need for the State to be “more than

a nominal party.” 458 U.S. at 607. The district court likewise combined

these concepts into one element. Given the close similarity of the parties’

arguments under these headings, we discuss the two formulations as a

single element, but we would reach the same conclusion even if we treated

them separately.
8 STATE OF MISSOURI EX REL.KOSTER V. HARRIS

Concerning the parties, the complaint alleges: “Missouri

farmers produced nearly two billion eggs in 2012 and

generated approximately $171 million in revenue for the

state”; “Nebraska is one of the top ten largest egg producers

in the United States”; “Alabama is one of the top fifteen

largest egg producers in the United States”; “Kentucky

farmers produced approximately 1.037 billion eggs in 2012

and generated approximately $116 million in revenue for the

state”; “Oklahoma farmers produced more than 700 million

eggs in 2012 and generated approximately $90 million in

revenue for the state”; and “Iowa is the number one state in

egg production[,] Iowa farmers produce over 14.4 billion

eggs per year,” and “[t]he cost to Iowa farmers to retrofit

existing housing or build new housing that complies with

AB1437 would be substantial.”

The laws “forc[e] Plaintiffs’ farmers either to forgo

California’s markets altogether or accept significantly

increased production costs just to comply.” That is,

“Plaintiffs’ egg farmers must choose either to bring their

entire operations into compliance . . . or else simply leave the

California marketplace.” “[T]he necessary capital

improvements [would] cost Plaintiffs’ farmers hundreds of

millions of dollars,” and, without access to the California

market, “supplywould outpace demand by half a billion eggs,

causing the price of eggs—as well as egg farmers’

margins—to fall throughout the Midwest and potentially

forc[e] some Missouri producers out of business. The same

goes for egg producers in Nebraska, Alabama, Oklahoma,

Kentucky, and Iowa.”

In short, the complaint alleges the importance of the

California market to egg farmers in the Plaintiff States and

the difficult choice that egg farmersface in deciding whether

to comply with the Shell Egg Laws. The complaint contains
STATE OF MISSOURI EX REL.KOSTER V. HARRIS 9

no specific allegations about the statewide magnitude of these

difficulties2 or the extent to which they affect more than just

an “identifiable group of individual” egg farmers. Snapp,

458 U.S. at 607.

Plaintiffs advance several theories to demonstrate “an

interest apart from the interests of particular private parties”

and an effect on “a sufficiently substantial segment of [the]

population.” Id. First, Plaintiffs allege harm to their egg

farmers. Second, Plaintiffs argue that the Shell Egg Laws

will cause harmful fluctuations in the price of eggs. Finally,

Plaintiffs allege that they will suffer discrimination from the

Shell Egg Laws. For the reasons that follow, none of these

theories establishes standing.

1. Alleged Harm to Egg Farmers

Alleging harm to the egg farmers in Plaintiffs’ States is

insufficient to satisfy the first prong of parens patriae

standing. Other courts have recognized that parens patriae

standing is inappropriate where an aggrieved party could seek

private relief. The Second Circuit, for example, held that

“[p]arens patriae standing . . . requires a finding that

individuals could not obtain complete relief through a private

suit.” N.Y. ex rel. Abrams v. 11 Cornwell Co., 695 F.2d 34,

40 (2d Cir. 1982), vacated in part on other grounds, 718 F.2d

22 (2d Cir. 1983) (en banc); see also Connecticut v.

Physicians Health Servs. of Conn., Inc., 103 F. Supp. 2d 495,

2 At a hearing, the district court asked Plaintiffs where in their

complaint they alleged harm to more than just egg producers. Plaintiffs’

lawyer pointed to paragraphs 7 and 13. Paragraph 7 describes harm to egg

farmers. Paragraph 13 includes no specific facts, stating only, in

conclusory fashion, that “Missouri’s economy and status within the

federal system will be irreparably injured.”
10 STATE OF MISSOURI EX REL.KOSTER V. HARRIS

504 (D. Conn. 2000) (noting that “the Second Circuit has

interpreted Snapp to require a finding that the State act on

behalf of individuals who could not obtain complete relief

through a private suit”). Here, complete relief would be

available to the egg farmers themselves, were they to file a

complaint on their own behalf.

Supreme Court cases in which private relief was held to

be unlikely or unrealistic illustrate why parens patriae

standing does not lie here. In Missouri v. Illinois, 180 U.S.

208 (1901), though never explicitly calling it a parens patriae

case, the Supreme Court heard a sewage dispute between two

states. The Court observed that “the nature of the injury

complained of is such that an adequate remedy can only be

found in this court at the suit of the state of Missouri.” Id. at

241. The Court emphasized that the “health and comfort of

the large communities inhabiting those parts of the state

situated on the Mississippi River are not alone concerned, but

contagious and typhoidal diseases introduced in the river

communities may spread themselves throughout the territory

of the state.” Id.; see also Snapp, 458 U.S. at 603 (describing

“a line of cases . . . in which States successfully sought to

represent the interests of their citizens in enjoining public

nuisances”). In other words, Missouri alleged that a public

health hazard affected its entire population. By contrast, the

Shell Egg Laws are not alleged to threaten the health of the

entire population (or, indeed of anyone), and those directly

affected—egg farmers—are capable of pursuing their own

interests.

A rationale similar to that in Missouri v. Illinoissupported

parens patriae standing in Maryland v. Louisiana, 451 U.S.

725 (1981). There, Louisiana imposed a “First-Use Tax” on

natural gas piped into the state from federal offshore drilling

areas. A group of states, later joined by the federal
STATE OF MISSOURI EX REL.KOSTER V. HARRIS 11

government and several pipeline companies, filed an original

jurisdiction suit in the Supreme Court challenging the tax

under, among other sources, the Commerce Clause. The

Court found jurisdiction on several theories, including the

States’ interest as parens patriae. Id. at 737. The Court

observed that

the incidence of the Tax [does not] fall on a

small group of citizens who are likely to

challenge the Tax directly. Rather, a great

many citizens in each of the plaintiff States

are themselves consumers of natural gas and

are faced with increased costs aggregating

millions of dollars per year. As the Special

Master observed,individual consumers cannot

be expected to litigate the validity of the FirstUse Tax given that the amounts paid by each

consumer are likely to be relatively small.

Id. at 739. Maryland v. Louisiana’s logic counsels the

opposite result here: Whereas millions of consumers

probably cannot challenge another state’s tax on their

commodities, large egg producers certainly could file an

action like this one on their own.

2. Alleged Fluctuation in the Price of Eggs

Plaintiffs argue that fluctuations in the price of eggs will

harm consumers, thereby affecting a substantial segment of

their populations and establishing parens patriae standing. 

Plaintiffs filed their complaint before the Shell Egg Laws

took effect. As a result, their allegations about the potential

economic effects of those laws, after implementation, were

necessarily speculative. Indeed, Plaintiffs’ allegations are

inconsistent; the complaint alleges that prices will go either
12 STATE OF MISSOURI EX REL.KOSTER V. HARRIS

up or down. On the one hand, Plaintiffs allege that farmers

must bring all egg facilities into compliance with the Shell

Egg Laws, regardless of the proportion of their product

actually bound for California, because the demand across

markets fluctuates. The cost of “compliant” eggs will thus

increase across the board. On the other hand, Plaintiffs allege

that, if farmers decline to comply and they exit the California

market, “the price of eggs . . . [would] fall throughout the

Midwest.” Neither of these alleged results is sufficient to

support parens patriae standing.

At the outset, the unavoidable uncertainty of the alleged

future changes in price makes the alleged injury insufficient

for Article III standing. In Lujan v. Defenders of Wildlife,

504 U.S. 555, 562 (1992), the Supreme Court explained that

it is “substantially more difficult” for a plaintiff to establish

standing when the plaintiff “is not himself the object of the

government action or inaction he challenges”:

[C]ausation and redressability ordinarily

hinge on the response of the regulated (or

regulable) third party to the government

action or inaction—and perhaps on the

response of others as well. The existence of

one or more of the essential elements of

standing depends on the unfettered choices

made by independent actors not before the

courts and whose exercise of broad and

legitimate discretion the courts cannot

presume either to control or to predict, and it

becomes the burden of the plaintiff to adduce

facts showing that those choices have been or

will be made in such manner as to produce

causation and permit redressability of injury.
STATE OF MISSOURI EX REL.KOSTER V. HARRIS 13

Id. (citations and internal quotation marks omitted). 

Although Lujan describes facts that must be averred on

summary judgment, the complaint here cannot allege, even

under the more permissive standards at the pleading stage,

that the choices leading to consumer price increases “have

been or will be made.” Id. Instead, the allegations in the

complaint are “too speculative for Article III purposes,” and

Plaintiffs have failed to explain how the injury is “certainly

impending.” Id. at 565 n.2 (quoting Whitmore v. Arkansas,

495 U.S. 149, 158 (1990)); see also Clapper, 133 S. Ct. at

1147 (rejecting the Second Circuit’s “objectively reasonable

likelihood” standard as “inconsistent with our requirement

that threatened injury must be certainly impending to

constitute injury in fact” (internal quotation marks omitted));

Ass’n of Pub. Agency Customers v. Bonneville Power Admin.,

733 F.3d 939, 952 (9th Cir. 2013) (finding concrete,

particularized injury when utility price increases will affect

customer-plaintiffs indirectly due to “‘pass-through’

contracts” that “almost certainly” pass along increases). 

Unlike the First-Use Tax in Maryland v. Louisiana or the

threatened withdrawal of West Virginia gas in Pennsylvania

v. West Virginia, 262 U.S. 553 (1923)—both of which

presented state actions with nearly certain price effects for

many or all of the plaintiffs’ citizens—here, the alleged price

effects for consumers are remote, speculative, and contingent

upon the decisions of many independent actors in the causal

chain in response to California laws that have no direct effect

on either price or supply. The Supreme Court has been

“reluctant to endorse standing theories that require guesswork

as to how independent decisionmakers will exercise their

judgment.” Clapper, 133 S. Ct. at 1150. In short, Plaintiffs’

price-related allegations do not support Article III standing.

Even assuming that the price allegations are not too

speculative, they still do not succeed in establishing parens
14 STATE OF MISSOURI EX REL.KOSTER V. HARRIS

patriae standing. In the first proposed scenario, Plaintiffs’

egg farmers comply with the Shell Egg Laws to continue

selling eggs in California. But, assuming that the farmers do

not find other ways to cut their costs, and assuming further

that they pass their increased costs on to Plaintiffs’

consumers, our caselaw still holds that such allegations fail to

support standing. In Table Bluff, we held that “no

constitutional injury occurs when a manufacturer passes on

higher costs in the form of price increases.” 256 F.3d at 885. 

Although the plaintiffs in Table Bluff alleged due process

violations, we have applied the same principle in a Commerce

Clause case. We held that, although a law regulating firearms

may tend to restrict supply, nothing in the Act

directs manufacturers or dealers to raise the

price of regulated weapons. Under Lujan,

plaintiffs’ injury does not satisfy the

requirements of Article III because it is “the

result of the independent action of some third

party not before the court.”

San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121,

1130 (9th Cir. 1996) (brackets omitted) (quoting Lujan,

504 U.S. at 560). The “traceability” principle—that plaintiffs

cannot allege standing from a speculative restriction in supply

by predicting an eventual increase in price—applies here as

well; the State of California will not increase egg prices for

Plaintiffs’ consumers.

The result in Maryland v. Louisiana is not to the contrary. 

There, explaining that a state “may act as the representative

of its citizens in original actions where the injury alleged

affects the general population of a State in a substantial way,”

451 U.S. at 737 (emphasis added), the Court found that the

plaintiff states had alleged injury both to their proprietary
STATE OF MISSOURI EX REL.KOSTER V. HARRIS 15

interests as gas consumers and to their citizens “from

substantial economic injury presented by imposition of the

First-Use Tax,” id. at 739 (emphasis added). Plaintiffs do not

allege a similarly substantial injury here. Natural gas is a

commodity so universally critical to state governments,

businesses, and ordinary consumers that the Supreme Court

has twice granted parens patriae standing to challenge state

actions that directly threaten shortages or price increases. Id.;

Pennsylvania, 262 U.S. at 592 (describing a cut-off in gas as

“a matter of grave public concern”). An ordinary consumer

commodity, such as eggs, lacks the central economic

significance to a state of a utility’s product, such as natural

gas.

In Plaintiffs’ second proposed scenario, the egg farmers

in Plaintiffs’ states do not bring their farms into compliance

with the Shell Egg Laws. If Plaintiffs’ allegation correctly

predicts that egg prices in the Midwest would drop due to

excess supply, no ill effects for egg consumers would come

to pass. Indeed, such a change would benefit Plaintiffs’

consumers. It would be only egg farmers, not consumers,

who might suffer an injury in that scenario. But, as we have

explained, an injury to egg farmers alone is not sufficient to

sustain parens patriae standing.

3. Alleged Discrimination

Finally, Plaintiffs’ reliance on cases granting parens

patriae standing to challenge discrimination against a state’s

citizens is misplaced. The Shell Egg Laws do not distinguish

among eggs based on their state of origin. A statute that

treats “both intrastate and interstate products” alike “is not

discriminatory.” Ass’n des Eleveurs de Canards et d’Oies du

Quebec v. Harris, 729 F.3d 937, 948 (9th Cir. 2013).
16 STATE OF MISSOURI EX REL.KOSTER V. HARRIS

In Snapp, Puerto Rico, acting as parens patriae, sued on

behalf of its workers who allegedly suffered discrimination

under a federal hiring program. The Court rejected “too

narrow a view of the interests at stake.” Snapp, 458 U.S. at

609. Although only 787 jobs were at issue, the nature of the

discrimination affected all Puerto Ricans, so Puerto Rico

could pursue relief for all residents under a parens patriae

theory. Id. But Snapp does not assist Plaintiffs because there

is no discrimination here, whether to the few or to the many. 

As noted, California egg farmers are subject to the same rules

as egg farmers from all other states, including California

itself.

Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945), is

no more helpful to Plaintiffs than is Snapp. There, Georgia

sued a collection of southern railroads, alleging

discriminatory price-fixing to the detriment of the entire

economy of Georgia. The Court held that the State was not

a mere nominal plaintiff, with “individual shippers being the

real complainants.” Id. at 452. Instead, the implications of

price discrimination against Georgia-based commerce were

“matters of grave public concern in which Georgia ha[d] an

interest apart from that of particular individuals who may be

affected,” id. at 451, because rail rates “may arrest the

development of a State or put it at a decided disadvantage in

competitive markets,” id. at 450. By contrast, Plaintiffs

allege no trade barriers erected against their broader

economies and, again, the Shell Egg Laws are not

discriminatory. Accordingly, Plaintiffs’ allegations of

discrimination do not establish parens patriae standing.

B. Leave to Amend

Plaintiffs urge us to reverse the district court’s denial of

leave to amend their complaint. They seek “[a]t the very least
STATE OF MISSOURI EX REL.KOSTER V. HARRIS 17

. . . to plead the additional information [that they have]

gathered since the Shell Egg Laws went into effect.”

3

“Denial of leave to amend is reviewed for an abuse of

discretion.” Dougherty v. City of Covina, 654 F.3d 892, 897

(9th Cir. 2011). “Dismissal without leave to amend is

improper unless it is clear, upon de novo review, that the

complaint could not be saved by any amendment.” Thinket

Ink Info Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053,

1061 (9th Cir. 2004). But a “district court does not err in

denying leave to amend where the amendment would be

futile.” Id. (internal quotation marks omitted). An

amendment is futile when “no set of facts can be proved

under the amendment to the pleadings that would constitute

a valid and sufficient claim or defense.” Miller v. RykoffSexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). We find no

abuse of discretion.

First, Plaintiffs cannot satisfy the requirements of

standing by adding events that have occurred after the Shell

Egg Laws took effect. “[S]tanding is determined as of the

commencement of litigation.” Yamada v. Snipes, 786 F.3d

1182, 1203 (9th Cir.), cert. denied, 136 S. Ct. 569 (2015)

(internal quotation marks omitted); accord D’Lil v. Best W.

Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008). 

Plaintiffs brought this action before the Shell Egg laws took

effect. Accordingly, later developments cannot save the

complaint.

Second, Plaintiffs argue that certain allegations were

available when the complaint was filed and that they should

be allowed to include them now. In particular, Plaintiffs wish

3 As construed by the district court and as argued on appeal, Plaintiffs

seek to amend their complaint. They do not seek to supplement the

pleadings pursuant to Federal Rule of Civil Procedure 15(d).
18 STATE OF MISSOURI EX REL.KOSTER V. HARRIS

to allege that eggs are an important, affordable source of

protein with which the Shell Egg Laws threaten to interfere,

and that the threat of increased egg prices affects not just egg

farmers, but also “grocers, bakers, and restaurant owners.” 

Those allegations would still fail to establish standing

because, at most, they allege a potential price increase for

consumers indirectly resulting from the Shell Egg Laws. As

noted earlier, our precedents hold that such speculative

allegations are insufficient for parens patriae standing. Table

Bluff, 256 F.3d at 885; San Diego Cty. Gun Rights Comm.,

98 F.3d at 1130. Plaintiffs also allege that the price of eggs

might drop. Again, as discussed above, the contingent and

uncertain nature of the alternatives available to plead when

this complaint was filed are inadequate to support Article III

standing.

In short, Plaintiffs would be unable to assert parens

patriae standing in an amended complaint. The district court

did not err by denying leave to amend.

C. Dismissal With Prejudice

Finally, Plaintiffs argue that, because the district court

dismissed the complaint for lack of subject matter

jurisdiction, the dismissal should have been without

prejudice. “We review for abuse of discretion a district

court’s decision to dismiss with prejudice.” Okwu v. McKim,

682 F.3d 841, 844 (9th Cir. 2012).

In general, dismissal for lack of subject matter jurisdiction

is without prejudice. See City of Oakland v. Hotels.com LP,

572 F.3d 958, 962 (9th Cir. 2009) (“[F]ailure to exhaust

administrative remedies is properly treated as a curable defect

and should generally result in a dismissal without

prejudice.”); Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034,
STATE OF MISSOURI EX REL.KOSTER V. HARRIS 19

1036 (9th Cir. 2004) (dismissing a complaint without

prejudice when the amount in controversy requirement was

not met); Freeman v. Oakland Unified Sch. Dist., 179 F.3d

846, 847 (9th Cir. 1999) (order) (“Dismissals for lack of

jurisdiction should be without prejudice so that a plaintiff

may reassert his claims in a competent court.” (internal

quotation marks and ellipsis omitted)). Exceptions to the

general rule include dismissals on the ground of sovereign

immunity, Lake Wash. Sch. Dist. No. 414 v. Office of

Superintendent of Pub. Instr., 634 F.3d 1065, 1069 (9th Cir.

2011), and situations in which the plaintiff “could not have

possibly amended his complaint to allege an injury in fact,”

Schmier v. U.S. Court of Appeals for Ninth Circuit, 279 F.3d

817, 824 (9th Cir. 2002).

The theory undergirding the general rule is that “the

merits have not been considered” before dismissal. Cooper

v. Ramos, 704 F.3d 772, 777 (9th Cir. 2012). No recognized

exception to that general rule applies here. Plaintiffs have not

satisfied the requirements of parens patriae standing. But in

theory, Plaintiffs could allege post-effective-date facts that

might support standing. As a result, the complaint should

have been dismissed without prejudice. See City of Oakland,

572 F.3d at 962 (affirming dismissal but remanding to

dismiss without prejudice); Kelly, 377 F.3d at 1040 (affirming

with instructions to enter order of dismissal without

prejudice).

The judgment of the district court is AFFIRMED and the

case is REMANDED with instructions to dismiss this action

without prejudice.