CMKM Diamonds Inc. (fka CMKX)

[needdiamonds]

I knew if I waited long enough LOL Seriously I been away from Ihub. Sorry Just got your message


http://www.ca9.uscourts.gov/datastore/memoranda/2012/12/19/11-55169.pdf


UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DAVID ANDERSON, Lt. Col; et al.,
Plaintiffs - Appellants,
v.
CHRISTOPHER COX, an individual; et
al.,
Defendants - Appellees.
No. 11-55169
D.C. No. 8:10-cv-00031-JVSMLG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted December 4, 2012**
Pasadena, California
Before: PREGERSON,


Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted December 4, 2012**
Pasadena, California
Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.
Plaintiffs-Appellants, shareholders of the de-registered public company
CMKM Diamonds, Inc. filed a First Amended Complaint asserting a takings and
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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).
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due process claims under the Fifth Amendment, and a declaratory relief claim
against Defendants-Appellees, past and current SEC officials. Plaintiffs appeal the
district court’s grant of Defendants’ motion to dismiss Plaintiffs’ First Amended
Complaint with prejudice. Plaintiffs contend they have adequately pleaded claims
against Defendants in their individual capacities, and thus, do not appeal the
district court’s dismissal of Plaintiffs’ claims against Defendants in their official
capacities.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo.
Mullis v. U.S. Bankr. Court for Dist. of Nevada, 828 F.2d 1385, 1388 (9th Cir.
1987). We affirm.

Plaintiffs fail to state claims against Defendants in their individual capacities
for the following reasons. The district court properly dismissed Plaintiffs’ takings
and due process claims under the Fifth Amendment because Plaintiffs do not allege
facts giving rise to a sufficient property interest. See Peterson v. U.S. Dept. of
Interior, 899 F.2d 799, 807 (9th Cir. 1990) (“[T]he first step in both due process
and taking[s] analyses is to determine whether there is a property right that is
protected by the Constitution”); Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th
Cir. 1996) (holding that shareholder plaintiffs did not have a sufficient proprietary
interest in corporate equity to state a takings claim).


Plaintiffs’ individual capacity claims fail for additional reasons. Assuming a
Bivens action applies to a takings claim, Plaintiffs fail to state sufficient facts to
establish that each official violated Plaintiffs’ constitutional rights, as required for
a Bivens action. See Kwai Fun Wong v. United States, 373 F.3d 952, 959, 966 (9th
Cir. 2004) (holding that no Bivens action existed where plaintiff “fail[ed] to
identify what role, if any, each individual defendant had in [the misconduct]”).
Defendants are also entitled to qualified immunity because the right that Plaintiffs
seek to protect was not clearly established at the time of the alleged misconduct.
Id. at 976 (concluding that right was not clearly established because the Ninth
Circuit and Supreme Court had never squarely addressed the alleged right).


Plaintiffs abandoned their declaratory relief claim on appeal by failing to
challenge the district court’s dismissal of this claim in their brief. Fogel v. Collins,
531 F.3d 824, 829 n.1 (9th Cir. 2008). Besides, Plaintiffs’ declaratory relief claim
was based on their Fifth Amendment claims and suffers from the same defects.
See Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1044 (9th Cir.
2010) (dismissing declaratory relief claims based on dismissed claims).
AFFIRMED.