Opinion · Court of Appeals for the Ninth Circuit
Dichter-Mad Family Partners, LLP v. United States
709 F.3d 749
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 2013-02-12
- Topic
- general
Finding that decisions of “whether and how to conduct investigations and enforcement 23 actions are firmly lodged in the SEC’s discretion” | holding that “broad discretion is vested in the trial court to permit or deny discovery, and its decision to deny discovery will not be disturbed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant” | finding that an SEC investigation falls under the discretionary function exception | noting the broad discretion vested in the trial court to 15 permit or deny discovery | setting forth standard of review and explaining that district courts have “broad discretion” to permit or deny discovery | finding alleged violations of 19 policies lack a causal relationship to plaintiffs’ alleged injuries required to establish jurisdiction 20 so certain FTCA claims were properly dismissed | affirming dismissal of FTCA claim where “[t]hose policies that are arguably mandatory lack the causal relationship to the plaintiffs’ alleged injuries required to establish jurisdiction, even under a generous reading of the complaint” | “It is well-established that the burden is on the party 3 seeking to conduct additional discovery to put forth sufficient facts to show that the evidence 4 sought exists.” | “broad discretion is vested in the trial court to 5 permit or deny discovery” | “The decision of whether or not to bring an enforcement action is plainly discretionary.” | “dismissal for lack of subject matter jurisdiction is ordinarily without prejudice”
Citator
- Cited by
- 33 opinions
ORDER
The opinion and appendix filed on January 28, 2013 are withdrawn. A new opinion and appendix are filed concurrently with this order.
IT IS SO ORDERED.
OPINION
PER CURIAM:After careful de novo review of the record in this appeal, we conclude that the district court correctly concluded that it lacked jurisdiction to entertain Appellants’ claims because they fall within the “discretionary function” exception to the United States’ waiver of sovereign immunity in the Federal Tort Claims Act. 28 U.S.C. § 2680(a). Thus, we affirm the district court’s judgment of dismissal for lack of subject matter jurisdiction and adopt Parts I through V of the district court’s comprehensive and well-reasoned April 20, 2010 opinion, Dichter-Mad Family Partners, LLP v. United States, 707 F.Supp.2d 1016 (C.D.Cal.2010), as our own, and attach it to this opinion as an Appendix.
We further hold, as the district court also concluded in an unpublished order dismissing Appellants’ claims with prejudice, that the additional allegations made in the Second Amended Complaint1 are insufficient to overcome the discretionary function exception to the Federal Tort Claims Act’s waiver of sovereign immuni
Finally, the district court did not abuse its discretion in denying Appellants’ request for additional discovery. “As we have explained, ‘broad discretion is vested in the trial court to permit or deny discovery, and its decision to deny discovery will not be disturbed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant.’ ” Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.2002) (alteration omitted) (quoting Goehring v. Brophy, 94 F.3d 1294, 1305 (9th Cir.1996)). A plaintiff seeking discovery must allege “enough fact to raise a reasonable expectation that discovery will reveal” the evidence he seeks. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Gager v. United States, 149 F.3d 918, 922 (9th Cir.1998) (“It is well-established that the burden is on the party seeking to conduct additional discovery to put forth sufficient facts to show that the evidence sought exists.”) (internal quotation marks and alterations omitted). The district court’s reasoned finding that the plaintiffs failed to meet this burden was a proper exercise of its discretion. See Hallett, 296 F.3d at 751.
AFFIRMED.
[[Image here]]
. The duties alleged in the Second Amended Complaint are taken from the SEC Enforcement Manual, which the district court ordered the government to produce.