NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEFA S. LOPEZ; JOSE TRINIDAD

CASAS; MARIA C. CASAS; LYNDON

B. GRAVES; TYRONE EVENSON;

MICHELLINA EVENSON; BRYAN

GRAY; HELEN GRAY; PATRICK

FRANKOSKI; CHRISTOPHER

PETERNELL,

 Plaintiffs - Appellants,

 v.

FEDERAL HOUSING FINANCE

AGENCY, as Conservator of Fannie Mae

and Freddie Mac,

 Intervenor-Defendant -

Appellee,

EXECUTIVE TRUSTEE SERVICE, LLC;

COUNTRYWIDE HOME LOANS, INC.;

GMAC MORTGAGE, LLC; NATIONAL

CITY MORTGAGE; NATIONAL CITY

CORPORATION; PNC FINANCIAL

SERVICES, INC.; AIG UNITED

GUARANTY CORPORATION; WELLS

FARGO BANK, NA; BANK OF

AMERICA, NA; RECONSTRUCT;

No. 11-17645

D.C. No. 3:09-cv-00180-ECRVPC

MEMORANDUM*

FILED

JUN 12 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 * 36 This disposition is not appropriate for publication and is not precedent

37 except as provided by 9th Cir. R. 36-3.
SAXON MORTGAGE SERVICES INC.;

GALE GROUP; SECURITY UNION

TITLE INSURANCE COMPANY;

NATIONAL DEFAULT SERVICING

CORPORATION; NATIONAL CITY

BANK; WELLS FARGO HOME

EQUITY; WELLS FARGO HOME

MORTGAGE, INC.; CHEVY CHASE

BANK FSB; HOMECOMINGS

FINANCIAL, LLC,

 Defendants - Appellees.

Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, Senior District Judge, Presiding

Submitted November 8, 2013** 

San Francisco, California

Before: TASHIMA, W. FLETCHER, and NGUYEN, Circuit Judges.

Plaintiffs, homeowners whose home loans have fallen into default, appeal

the district court’s order dismissing their Second Amended Complaint (“SAC”)

under Federal Rules of Civil Procedure 9(b) and 12(b)(6). We affirm.

Plaintiffs challenge the order of the Judicial Panel on Multidistrict Litigation

(“JPML”) transferring this case to the U.S. District Court for the District of

Arizona (“MDL Court”) and the MDL Court’s order interpreting the JPML’s order. 

 ** 26 The panel unanimously concludes this case is suitable for decision

27 without oral argument. See Fed. R. App. P. 34(a)(2).

2
We lack jurisdiction to review the JPML’s order because Plaintiffs have not sought

a writ of mandamus. 28 U.S.C. § 1407(e); see In re Wilson, 451 F.3d 161, 168 (3d

Cir. 2006). Plaintiffs waived their challenge to the MDL Court’s order by not

“specifically and distinctly” arguing it in their opening brief. Kim v. Kang, 154

F.3d 996, 1000 (9th Cir. 1998).

The district court properly dismissed Plaintiffs’ fraud in the inducement

claims for failure to plead fraud with particularity. See Fed. R. Civ. P. 9(b). In

order to successfully plead claims grounded in fraud, a complaint must “state the

time, place, and specific content of the false representations as well as the identities

of the parties to the misrepresentation.” Edwards v. Marin Park, Inc., 356 F.3d

1058, 1066 (9th Cir. 2004) (quoting Alan Neuman Prods, Inc. v. Albright, 862 F.2d

1388, 1392–93 (9th Cir. 1988)). Plaintiffs’ SAC fails to provide the necessary

allegations of “the who, what, where, when, and how” of the fraud. See Vess v.

Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Cooper v.

Pickett, 137 F.3d 616, 627 (9th Cir. 1998)). 

The district court properly dismissed Plaintiffs’ claim for unjust enrichment.

Under Nevada law, unjust enrichment is not available when the parties had an

express, written contract. LeasePartners Corp. v. Robert L. Brooks Trust Dated

Nov. 12, 1975, 942 P.2d 182, 187 (Nev. 1997). Even if unjust enrichment is

3
available when an express contract is procured by fraud, Plaintiffs did not plead

fraud with particularity. 

Because Plaintiffs’ claims for fraud in the inducement and unjust enrichment

both fail, the district court also properly dismissed their requests for injunctive and

declaratory relief.

Although leave to amend should be granted with “extreme liberality,”

Chodos v. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (quoting Morongo

Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)), “[t]he

district court’s discretion to deny leave to amend is particularly broad where

plaintiff has previously amended the complaint.” Ascon Props, Inc. v. Mobil Oil

Co., 866 F.2d 1149, 1160 (9th Cir. 1989). Plaintiffs already amended their

complaint once as of right and once with the leave of the district court. Contrary to

the assertions in their opening brief, Plaintiffs made no motion for leave to amend

their SAC. The district court did not abuse its discretion, either in failing to make

Plaintiffs an unsolicited offer to amend their SAC or in dismissing the complaint

with prejudice.

AFFIRMED.

4