Cynthia S. Wills v. First Republic Bank

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CYNTHIA S. WILLS,
Plaintiff-Appellant,
v.
FIRST REPUBLIC BANK,
Defendant-Appellee.
No. 19-17001
D.C. No. 5:19-cv-01819-NC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Nathanael M. Cousins, Magistrate Judge, Presiding
Submitted February 7, 2022**
San Francisco, California
Before: HURWITZ and VANDYKE, Circuit Judges, and ERICKSEN,*** District
Judge.
Cynthia Wills appeals the district court’s order dismissing with prejudice the
breach-of-contract and negligent infliction of emotional distress (NIED) claims
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Joan N. Ericksen, United States District Judge for the
District of Minnesota, sitting by designation.
FILED
FEB 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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raised in her first amended complaint against First Republic Bank pursuant to
Federal Rule of Civil Procedure 12(b)(6).1 We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo the district court’s order granting a motion to dismiss
under Rule 12(b)(6), Judd v. Weinstein, 967 F.3d 952, 955 (9th Cir. 2020), and
review for abuse of discretion the court’s decision to dismiss Wills’s claims with
prejudice, Chappel v. Lab’y Corp. of Am., 232 F.3d 719, 725 (9th Cir. 2000). We
affirm.
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A plausible claim requires “more than an unadorned, the-
defendant-unlawfully-harmed-me accusation,” and “a formulaic recitation of the
elements of a cause of action will not do.” Id. at 678 (quoting Twombly, 550 U.S. at
555). Likewise, conclusory allegations and unreasonable inferences will not defeat
a motion to dismiss. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007).
To plead a breach-of-contract claim under California law, Wills was required
to allege facts supporting: “(1) the existence of the contract, (2) plaintiff’s
performance or excuse for nonperformance, (3) defendant’s breach, and (4) the
1 All parties to this case consented to proceed before a magistrate judge pursuant to
28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

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resulting damages to the plaintiff.” Oasis W. Realty, LLC v. Goldman, 250 P.3d
1115, 1121 (Cal. 2011). To plead an NIED claim under California law, Wills must
allege facts supporting: (1) a duty of care owed to her by First Republic Bank, (2) a
breach of that duty by First Republic Bank, (3) that First Republic Bank’s breach
caused her injury, and (4) damages. Wells Fargo Bank, N.A. v. Renz, 795 F. Supp.
2d 898, 924–25 (N.D. Cal. 2011) (citing Ileto v. Glock, Inc., 349 F.3d 1191, 1203
(9th Cir. 2003)). Wills did not plead facts to support all the elements of either claim.
Instead, Wills did what Twombly and Iqbal forbid: she recited the elements of
breach-of-contract and negligence and concluded that First Republic harmed her,
without providing supporting factual allegations. Accordingly, the district court did
not err by dismissing her claims.
The district court did not abuse its discretion by dismissing Wills’s claims
with prejudice. The district court’s discretion to deny leave to amend is particularly
broad where the plaintiff has previously filed an amended complaint. Chodos v. W.
Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002). Before dismissing Wills’s claims
with prejudice, the district court allowed her to file an amended complaint and
provided her “with notice of the deficiencies in [her] complaint in order to ensure
that” Wills would use “the opportunity to amend effectively.” See Akhtar v. Mesa,
698 F.3d 1202, 1212 (9th Cir. 2012). Wills did not address the deficiencies in her
complaint despite the district court’s step-by-step guidance. We cannot say the court

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abused its discretion in then dismissing the amended complaint with prejudice. See
Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1144 (9th Cir. 2015).
AFFIRMED.

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