Burns v. Baldwin
Burns v. Baldwin
Opinion of the Court
MEMORANDUM
Robert B. Burns appeals the dismissal of his fourth amended complaint and dismissal of his Racketeer Influenced and Corrupt Organizations Act (hereinafter “RICO”) claim from his third amended complaint. We affirm. Because the parties are familiar with the factual and procedural histories of this case, we need not recount them here.
I
For the reasons stated in the district court’s December 21, 2001, decision, we affirm the dismissal of Burns’ fourth amended complaint.
II
On August 6, 2001, the district court dismissed Burns’ third amended complaint. A plain reading of the district court’s August 6, 2001, order indicates that the district court did not base its dismissal on any grounds raised by the Defendants-Appellees’ motion to dismiss. In fact, the district court stated that the entire third amended complaint was being dismissed because the factual circumstances had changed. Burns was granted leave to file a fourth amended complaint. The district court’s order did not include any language that prohibited a fourth amended complaint from including the RICO claim. On September 5, 2001, Burns filed a fourth amended complaint. That complaint alleged fraudulent transfer of assets, conspiracy to fraudulently transfer or conceal assets, and conspiracy to defraud. However, the fourth amended complaint did not include a RICO claim.
A plaintiff “waives all claims alleged in a dismissed complaint which are not realleged in an amended complaint.” Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997). By not realleging the RICO claim in the fourth amended complaint, Burns has waived this claim. Further, Burns has waived the right to attack on appeal the district court’s order that dismissed the RICO claim. Sacramento Coca-Cola Bottling Co. v. Chauffeurs, Teamsters & Helpers Local 150, 440 F.2d 1096,1098 (9th Cir. 1971); see also Marx v. Loral Corp., 87 F.3d 1049, 1055-56 (9th Cir. 1996).
Burns asserts, however, that such a reading would make the first sentence of the district court’s order superfluous. However, Burns’ interpretation would make superfluous the district court’s order dismissing the complaint in its entirety and the district court’s statement that it did not base its ruling on the issues raised in
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.