Mililani Group, Inc. v. O'reilly Automotive, Inc.; Csk Auto, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILILANI GROUP, INC.,
Plaintiff - Appellant,
v.
O'REILLY AUTOMOTIVE, INC.; CSK
AUTO, INC.,
Defendants - Appellees.
No. 13-16447
D.C. No. 2:12-cv-00891-JAM-
CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted October 22, 2015**
San Francisco, California
Before: PAEZ, MURGUIA, and HURWITZ, Circuit Judges.
Mililani Group, Inc. (“Mililani”) appeals from the district court’s dismissal
with prejudice of its Second Amended Complaint against O’Reilly Automotive, Inc.
* This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
FILED
OCT 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(“O’Reilly”). Mililani also challenges the district court’s entry of final judgment
pursuant to Federal Rule of Civil Procedure 54(b). We affirm.
1. A district court may enter final judgment as to some, but not all, of the
parties in multi-party litigation if it “expressly determines that there is no just reason
for delay.” Fed. R. Civ. P. 54(b). The judgment here is final as to O’Reilly
because all claims against that party were dismissed with prejudice. The district
court’s determination that the claims against the remaining party, O’Reilly
subsidiary CSK Auto, Inc. (“CSK”), were separable from the dismissed claims
against O’Reilly was not “clearly unreasonable.” AmerisourceBergen Corp. v.
Dialysist W., Inc., 465 F.3d 946, 954 (9th Cir. 2006). The court therefore did not
abuse its discretion in entering a final judgment.
2. Mililani’s claims against O’Reilly relied on the theory that CSK was
the alter ego of O’Reilly. Under California law, alter ego liability can be imposed
only if there was both a “unity of interest” between O’Reilly and CSK and if not
holding O’Reilly liable would be an “inequitable result.” Sonora Diamond Corp.
v. Superior Court, 83 Cal. App. 4th 523, 538 (Ct. App. 2000). Mililani did not
allege facts satisfying the second requirement. Other than a conclusory allegation,
no factual assertions in the Second Amended Complaint indicate that limiting
Mililani to recovery from CSK will lead to an inequitable result.

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3. Although Mililani did not seek leave to amend its Second Amended
Complaint in response to O’Reilly’s motion to dismiss for failure to state a claim, it
argues for the first time on appeal that the district court should have nonetheless
granted such leave. But “[w]here a party does not ask the district court for leave to
amend, the request on appeal to remand with instructions to permit amendment
comes too late.” Alaska v. United States, 201 F.3d 1154, 1163–64 (9th Cir. 2000)
(internal quotation marks and alterations omitted). Moreover, notwithstanding the
directive in Federal Rule of Civil Procedure 15(a)(2) to “freely give leave when
justice so requires,” a district court’s discretion to deny leave to amend is
“particularly broad when it has previously given leave to amend.” Gonzalez v.
Planned Parenthood of Los Angeles, 759 F.3d 1112, 1116 (9th Cir. 2014) (internal
quotation marks omitted). Mililani failed to state a claim against O’Reilly in three
pleadings, even after the district court identified the deficiencies in the First
Amended Complaint and granted leave to amend to allow Mililani to remedy them.
The district court did not abuse its discretion in declining sua sponte to grant leave
to amend the Second Amended Complaint.
AFFIRMED.

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