Rocky Tran v. Samsung Sdi Co. Ltd.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROCKY TRAN,
Plaintiff-Appellant,
v.
SAMSUNG SDI CO. LTD.,
Defendant-Appellee,
and
SAMSUNG SDI AMERICA, INC.;
BREAZY, INC, DBA Breazy.com,
Defendants.
No. 22-16288
D.C. No. 4:21-cv-03819-JSW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted October 6, 2023
San Francisco, California
Before: W. FLETCHER, TALLMAN, and LEE, Circuit Judges.
Plaintiff-Appellant Rocky Tran appeals the district court’s order denying
Tran’s motion to remand the action to California state court. Tran also appeals the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
OCT 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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district court’s order granting Defendant-Appellee Samsung SDI Korea’s (SDI)
motion to dismiss for failure to diligently prosecute. We affirm.
The district court did not err in exercising diversity jurisdiction over defendant
SDIA and denying Tran’s motion to remand because SDIA is a sham defendant that
was fraudulently joined. McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th
Cir. 1987) (“If the plaintiff fails to state a cause of action against a resident
defendant, and the failure is obvious according to the settled rules of the state, the
joinder of the resident defendant is fraudulent.”). Before both the district court and
our court, Tran was unable to state a viable cause of action against SDIA under either
California’s products liability theory or under an alter ego theory of liability. See
Bay Summit Cmty. Assn. v. Shell Oil Co., 59 Cal. Rptr. 2d 322, 330 (Cal. Ct. App.
1996) (establishing elements that California courts use to assess whether a non-
vertical market participant can be held strictly liable for defective products); see also
Ranza v. Nike, Inc., 793 F.3d 1059, 1073 (9th Cir. 2015) (internal citations omitted)
(stating the elements to establish that a subsidiary company is the mere alter ego of
its parent corporation).
A district court should articulate why it dismissed without granting leave to
amend; however, if upon de novo review the complaint could not be saved by the
proposed amendments, then dismissal was not an abuse of discretion. See Eminence
Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Because Tran’s

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proposed amendments were merely boilerplate legal conclusions, the district court
did not abuse its discretion in dismissing the complaint without granting leave to
amend.
Dismissal of a plaintiff’s claim pursuant to Fed. R. Civ. Pro. 41(b) is proper
if the plaintiff does not exercise reasonable diligence in advancing the action.
Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). Failing to diligently
prosecute a case “is sufficient by itself to justify a dismissal, even in the absence of
a showing of actual prejudice to the defendant from the failure.” Id (citations
omitted). Tran did not provide a reasonable excuse for his failure to serve SDI with
the summons and complaint until 455 days after the complaint was filed and 365
days after the case was removed to federal court. Because Tran did not exercise
reasonable diligence in pursuing the cause of action against SDI, the district court
did not abuse its discretion in granting SDI’s motion to dismiss.
AFFIRMED.

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