NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAUREN STROBLE, 

Plaintiff-Appellant, 

 v. 

WALMART, 

Defendant-Appellee.

No. 23-35287 

D.C. No. 3:21-cv-05627-DGE 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

David G. Estudillo, District Judge, Presiding

Argued and Submitted March 26, 2024

Seattle, Washington

Before: WARDLAW and MILLER, Circuit Judges, and CORLEY, District 

Judge.**

Lauren Stroble appeals the district court’s dismissal of her negligence 

complaint against Walmart, Inc. (“Walmart”) and denial of her separate motion for 

leave to amend. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in 

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jacqueline Scott Corley, United States District Judge 

for the Northern District of California, sitting by designation.

FILED

APR 15 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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part and reverse in part.

1. The district court did not err by granting Walmart’s motion to dismiss 

Stroble’s complaint. We review de novo a district court’s dismissal for failure to 

state a claim pursuant to Rule 12(b)(6).1 Starz Ent., LLC v. MGM Dom. Television 

Distrib., LLC, 39 F.4th 1236, 1239 (9th Cir. 2022). Stroble’s original complaint 

alleges that “Defendant installed laminate/vinyl type flooring near the dressing 

room area” and Stroble “sustained personal injuries” due to the “negligence and 

carelessness of” Walmart, but little else. The complaint fails to allege facts that 

support an inference that Walmart engaged in any negligent act or how that 

negligent act caused Stroble’s injuries. So, the complaint does not “contain 

sufficient factual matter, accepted as true, to state a claim to relief that is plausible 

on its face,” and therefore was properly dismissed. Khoja v. Orexigen 

Therapeutics, Inc., 899 F.3d 988, 1008 (9th Cir. 2018) (quoting Telesaurus VPC, 

LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010)). 

1 When Walmart filed its motion to dismiss, Walmart had already answered 

Stroble’s complaint, so Walmart should have filed a motion for judgment on the 

pleadings under Federal Rule of Civil Procedure 12(c). As the standard of review 

for the two motions is the same, however, this makes no difference to the appeal’s 

outcome. See Dworkin v. Hustler Mag. Inc., 867 F.2d 1188, 1192 (9th Cir. 1989) 

(“The principal difference between motions filed pursuant to Rule 12(b) and Rule 

12(c) is the time of filing. Because the motions are functionally identical, the same 

standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c) 

analog.”).
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2. Under Federal Rule of Civil Procedure 15(a)(2), district courts “should 

freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). 

But “[l]eave to amend may be denied if the proposed amendment is futile or would 

be subject to dismissal.” Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 (9th 

Cir. 2018). “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.” Missouri ex rel. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017) 

(internal quotation marks omitted). We review the denial of leave to amend for 

abuse of discretion, but, when that denial is premised on the determination that 

amendment would be futile, we review the futility of amendment de novo. Cohen 

v. ConAgra Brands, Inc., 16 F.4th 1283, 1287 (9th Cir. 2021).

The district court properly determined that Stroble’s proposed amended 

complaint failed to cure the problems in the original complaint. The proposed 

amended complaint alleges the “use of laminate and/or vinyl flooring in a dressing 

room presents an unreasonable risk of injury” because of the risk the clothing a 

person tries on will “be caught between the person’s foot and the laminate/vinyl 

flooring,” making it “reasonably likely and reasonably foreseeable that the

person’s foot will slip when stepping on the floor.” The proposed amended 

complaint further alleges that the dressing room had “no other precautions,” such 

as railings. Finally, the proposed amended complaint details the facts of Stroble’s 
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fall and connects that fall to Walmart’s alleged negligence. Even accepting all 

those factual allegations as true, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the 

proposed amended complaint fails to articulate “enough facts to state a claim to 

relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007), because it does not allege there was anything specific about the use of 

laminate and/or vinyl flooring that made it unreasonably dangerous. Without such 

factual allegations, Stroble’s assertion that the flooring was unreasonably 

dangerous is a legal conclusion that is not entitled to the presumption of truth. 

Ashcroft, 556 U.S. at 678.

3. However, the district court erred by dismissing the complaint without 

leave to amend because the complaint could be “saved” by amendments other than 

those proposed by Stroble. Armstrong v. Reynolds, 22 F.4th 1058, 1071 (9th Cir. 

2022). “Generally, . . . plaintiffs should be granted leave to amend their 

complaints unless ‘it is clear, upon de novo review, that the complaint could not be 

saved by any amendment.’” Id. (quoting Sonoma Cnty. Ass’n of Retired Emps. v. 

Sonoma Cnty., 708 F.3d 1109, 1118 (9th Cir. 2013)). The district court did not 

conclude that it would be impossible for Stroble to allege in an amended complaint 

that the dressing room floor was unreasonably dangerous—for example, because it 

was particularly slippery. It was therefore improper to issue judgment and deny 
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Stroble the opportunity to amend her complaint, especially because the district 

court had not previously dismissed the complaint. 

AFFIRMED in part, REVERSED in part, and REMANDED.

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2 The parties shall bear their own costs on appeal.