Case: 22-15166, 11/03/2023, ID: 12819362, DktEntry: 68-1, Page 1 of 16
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`
` No. 22-15166
`
`D.C. No. 3:21-cv-
`05567-EMC
`
`
`OPINION
`
`
`
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`
`Plaintiffs-Appellants,
`
`Plaintiff,
`
`
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`
`
`
`
`
`
`
`
`
`
`
`
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`CORONAVIRUS REPORTER;
`CALID, INC.; PRIMARY
`PRODUCTIONS LLC,
`
`
`
` and
`
`
`JEFFREY D. ISAACS, Dr.,
`
`
`
` v.
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`
`APPLE, INC.,
`
`
`
` and
`
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`FEDERAL TRADE COMMISSION,
`
`
`
`
`
` Defendant-Appellee,
`
` Defendant.
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`

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`2
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`CORONAVIRUS REPORTER V. APPLE, INC.
`
`
` No. 22-15167
`
`D.C. No. 3:21-cv-
`05567-EMC
`
`
`
`
`
`
`
`
`Plaintiff-Appellant,
`
`Plaintiffs,
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`
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`
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`
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`JEFFREY D. ISAACS, Dr.,
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`
`
` and
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`CORONAVIRUS REPORTER;
`CALID, INC.; PRIMARY
`PRODUCTIONS LLC,
`
`
`
` v.
`
`
`APPLE, INC.,
`
`
`
` and
`
`
`FEDERAL TRADE COMMISSION,
`
`
`
`
` Defendant-Appellee,
`
` Defendant.
`
`Appeal from the United States District Court
`for the Northern District of California
`Edward M. Chen, District Judge, Presiding
`
`Argued and Submitted March 29, 2023
`San Francisco, California
`
`Filed November 3, 2023
`
`

`

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`CORONAVIRUS REPORTER V. APPLE, INC.
`
`
`
`3
`
`Before: Ronald M. Gould, Marsha S. Berzon, and Sandra
`S. Ikuta, Circuit Judges.
`
`Opinion by Judge Gould
`
`SUMMARY*
`
`Antitrust
`
`
`
`
`
`
`
`
`
`
`The panel affirmed the district court’s dismissal, for
`failure to state a claim, of an antitrust action against Apple,
`Inc., alleging monopolist operation of the Apple App Store.
`The panel held that appellants failed to state an antitrust
`claim under Section 1 or Section 2 of the Sherman Act,
`arising from Apple’s rejection of their apps for distribution
`through the App Store, because they did not sufficiently
`allege a plausible relevant market, either for their rejected
`apps as compared to other apps, or for apps in general.
`The panel held that appellants failed to state a claim for
`breach of contract under California law because they did not
`identify relevant specific provisions of Apple’s Developer
`Agreement or Developer Program License Agreement or
`show that Apple breached a specific provision.
`Appellants also failed to state a claim under the
`Racketeer Influenced and Corrupt Organizations Act or for
`fraud.
`
`
`
`* This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`

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`4
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`CORONAVIRUS REPORTER V. APPLE, INC.
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`COUNSEL
`
`Keith Mathews (argued), American Wealth Protection,
`Manchester, New Hampshire; Stephan M. Kernan, The
`Kernan Law Firm, Beverly Hills, California; for Plaintiffs-
`Appellants.
`Jeffrey D. Isaacs (argued), West Palm Beach, Florida, pro se
`Petitioner.
`Julian W. Kleinbrodt (argued) and Rachel S. Brass, Gibson
`Dunn & Crutcher LLP, San Francisco, California; Cynthia
`E. Richman, Zachary B. Copeland, and Harry R.S. Phillips,
`Gibson Dunn & Crutcher LLP, Washington, D.C.; Mark A.
`Perry, Weil Gotshal & Manges LLP, Washington, D.C.; for
`Defendants-Appellee.
`
`
`
`OPINION
`
`
`GOULD, Circuit Judge:
`
`Plaintiffs-Appellants Coronavirus Reporter, CALID,
`Inc., Primary Productions LLC, and Dr. Jeffrey D. Isaacs
`sued Defendant-Appellee Apple for its allegedly monopolist
`operation of the Apple App Store. The district court
`dismissed the claims with prejudice for failure to state a
`claim under Federal Rule of Civil Procedure 12(b)(6) and
`denied the remaining motions as moot. Plaintiffs-Appellants
`appealed. We have jurisdiction under 28 U.S.C. § 1291, and
`we affirm.
`
`

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`CORONAVIRUS REPORTER V. APPLE, INC.
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`5
`
`I. FACTUAL AND PROCEDURAL BACKGROUND
`In 2008, a year after launching the iPhone, Apple
`introduced the App Store. In order to distribute apps on the
`App Store, app developers must abide by the App Store
`Review Guidelines (“the Guidelines”) and enter into two
`agreements with Apple: the Developer Agreement and the
`Developer Program License Agreement (“DPLA”). By
`signing
`these agreements, app developers expressly
`“understand and agree” that Apple has “sole discretion” to
`reject apps. The Guidelines provide developers with the
`standards Apple applies when it reviews apps.
`Plaintiffs-Appellants developed a group of apps that they
`sought to distribute on Apple’s App Store. Two of their
`apps—Coronavirus Reporter and Bitcoin Lottery—were not
`approved for distribution. The Coronavirus Reporter app
`sought to collect “bioinformatics data” from users about
`COVID-19 symptoms that the app would then share with
`“other users and [unidentified] epidemiology researchers.”
`The Coronavirus Reporter team allegedly included Dr.
`Robert Roberts, a former cardiologist for NASA. Apple
`rejected Coronavirus Reporter under Apple’s policy
`requiring that any apps related to COVID-19 be submitted
`by a recognized health entity such as a government
`organization or medical institution.1 Apple rejected Bitcoin
`Lottery, a blockchain app, under its policy “generally
`block[ing] blockchain apps.”
`Plaintiffs-Appellants brought claims against Apple for
`antitrust violations pursuant to Sections 1 and 2 of the
`
`1 Guidelines § 5.1.1(ix): “Apps that provide services in highly-regulated
`fields (such as banking and financial services, healthcare, and air travel)
`or that require sensitive user information should be submitted by a legal
`entity that provides the services, and not by an individual developer.”
`
`

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`CORONAVIRUS REPORTER V. APPLE, INC.
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`Sherman Act, breach of contract, racketeering, and fraud,
`challenging Apple’s allegedly monopolist operation of the
`iPhone “App Store”
`through
`the “curation” and
`“censor[ship]” of apps. Plaintiffs-Appellants assert that they
`“seek to vindicate” the right of “the end users of Apple’s
`iPhone” to “enjoy unrestricted use of their smartphones” to
`run “innovative applications, written by
`third party
`developers.”
`The district court dismissed Plaintiffs-Appellants’ First
`Amended Complaint (“FAC”) with prejudice on November
`30, 2021. The district court dismissed Plaintiffs-Appellants’
`antitrust claims because they did not allege a plausible
`relevant market nor antitrust injury. The district court
`likewise dismissed the claims for breach of contract,
`racketeering, and fraud because the Plaintiffs-Appellants
`failed to plead required elements for each. Accordingly, the
`district court denied as moot Plaintiffs-Appellants’ two
`preliminary
`injunction motions, Plaintiffs-Appellants’
`“motion to strike” Apple’s motion to dismiss, and Plaintiffs-
`Appellants’ Notices for Discovery of Apple executives and
`FTC Chair Lina Khan, along with Defendant-Appellee’s
`motion to quash these requests. The district court later
`rejected Plaintiffs-Appellants’ motions for reconsideration.
`Plaintiffs-Appellants appeal the district court’s dismissal
`of their claims, as well as the denial of their motions for
`reconsideration and for preliminary injunction.
`II. STANDARDS OF REVIEW
`We review de novo a district court’s grant of a motion to
`dismiss under Rule 12(b)(6), “accepting all factual
`allegations in the complaint as true and construing them in
`the light most favorable to the nonmoving party.” Ebner v.
`Fresh, Inc., 838 F.3d 958, 962 (9th Cir. 2016) (quoting
`
`

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`CORONAVIRUS REPORTER V. APPLE, INC.
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`7
`
`Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014
`(9th Cir. 2012)). The complaint must “plausibly give rise to
`an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662,
`679 (2009). “Conclusory allegations and unreasonable
`inferences” do not provide such a basis. Sanders v. Brown,
`504 F.3d 903, 910 (9th Cir. 2007). A dismissal may be
`affirmed on any proper ground that is supported by the
`record. See Johnson v. Riverside Healthcare System, LP,
`534 F.3d 1116, 1121 (9th Cir. 2008); Adams v. Johnson, 355
`F.3d 1179, 1183 (9th Cir. 2004); Papa v. United States, 281
`F.3d 1004, 1009 (9th Cir. 2002).
`Although decisions by the district court on the substance
`and merits of claims are reviewed de novo, see Ebner, 838
`F.3d at 962, many matters that routinely come before a
`district court are committed to the sound discretion of the
`district court and reviewed for abuse of discretion. See e.g.,
`Ordonez v. Johnson, 254 F.3d 814, 815 (9th Cir. 2001) (per
`curiam) (dismissal with prejudice); Pom Wonderful LLC v.
`Hubbard, 775 F.3d 1118, 1123 (9th Cir. 2014) (denial of a
`preliminary injunction); Kerr v. Jewell, 836 F.3d 1048, 1053
`(9th Cir. 2016) (denial of a motion for reconsideration), cert.
`denied sub nom. Kerr v. Haugrud, 580 U.S. 1198 (2017); cf.
`Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 759 (9th Cir.
`2015) (denying leave to amend), cert. denied, 577 U.S. 876
`(2015).
`
`III. DISCUSSION
`A. Antitrust claims
`An antitrust claim brought pursuant to Section 1 of the
`Sherman Act requires a plaintiff to show: “(1) the existence
`of an agreement, and (2) that the agreement was in
`unreasonable restraint of trade.” Aerotec Int’l, Inc. v.
`Honeywell Int’l, Inc., 836 F.3d 1171, 1177–78 (9th Cir.
`
`

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`2016) (quoting Am. Needle, Inc. v. Nat’l Football League,
`560 U.S. 183, 189-90 (2010)); FTC v. Qualcomm Inc., 969
`F.3d 974, 988 (9th Cir. 2020) (citing Ohio v. Am. Express
`Co., 138 S. Ct. 2274, 2283 (2018)).
`An antitrust claim brought pursuant to Section 2 of the
`Sherman Act requires proving the following two elements:
`“(1) the defendant has monopoly power in the relevant
`market, and (2) the defendant has willfully acquired or
`maintained monopoly
`power
`in
`that market.”
`Dreamstime.com, LLC v. Google LLC, 54 F.4th 1130, 1137
`(9th Cir. 2022) (citing United States v. Grinnell Corp., 384
`U.S. 563, 570–71 (1966)). To meet the first element, a
`plaintiff must “(1) define the relevant market, (2) establish
`that the defendant possesses market share in that market
`sufficient to constitute monopoly power, and (3) show that
`there are significant barriers to entering that market.” Id.
`The second element requires showing that the defendant
`undertook anticompetitive conduct
`that harms
`the
`competitive process as a whole, rather than the success or
`failure of individual competitors. Id.; see also Brunswick
`Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488–89
`(1977).
`“A threshold step in any antitrust case is to accurately
`define the relevant market.” Qualcomm, 969 F.3d at 992.
`For both Section 1 and Section 2 of the Sherman Act, a
`relevant market defines “the field in which meaningful
`competition is said to exist.” Image Tech. Servs., Inc. v.
`Eastman Kodak Co., 125 F.3d 1195, 1202 (9th Cir. 1997).
`Market definition is essential to any antitrust case because
`“[w]ithout a definition of [the] market there is no way to
`measure [the defendant’s] ability to lessen or destroy
`competition.’” Am. Express, 138 S. Ct. at 2285 (quoting
`Walker Process Equip., Inc. v. Food Mach. & Chem.
`
`

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`CORONAVIRUS REPORTER V. APPLE, INC.
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`9
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`Corp., 382 U.S. 172, 177 (1965) (alternations in original).
`“The principle most fundamental
`to product market
`definition is ‘cross-elasticity of demand’ for certain products
`or services.” Kaplan v. Burroughs Corp., 611 F.2d 286, 291
`(9th Cir. 1979). Cross-elasticity of demand refers to the
`extent to which consumers view two “products [as] be[ing]
`reasonably interchangeable” or substitutable for one another.
`Gorlick Distrib. Ctrs., LLC v. Car Sound Exhaust Sys., Inc.,
`723 F.3d 1019, 1025 (9th Cir. 2013) (citing Brown Shoe Co.
`v. United States, 370 U.S. 294, 325 (1962)). Products or
`services that are “reasonably interchangeable” should be
`considered as being in the same market for the purpose of an
`antitrust claim. Kaplan, 611 F.2d at 291–92 (citing U.S. v.
`E.I. DuPont De Nemous & Co., 351 U.S. 377 (1956)). “A
`relevant market contains both a geographic component and
`a product or service component.” Epic Games, Inc. v. Apple,
`Inc., 67 F.4th 946, 975 (9th Cir. 2023) (citing Hicks v. PGA
`Tour, Inc., 897 F.3d 1109, 1120 (9th Cir. 2018)). Courts also
`consider the “practical indicia” of a market, including
`industrial or public recognition of a market as a separate
`entity or sensitivity to price changes. Id. at 976 (citing
`Brown Shoe Co., 370 U.S. at 325).
`A relevant market can be an aftermarket in which
`demand depends entirely upon prior purchases in a
`foremarket. Id. (citing Eastman Kodak Co. v. Image Tech.
`Servs., Inc., 504 U.S. 451, 482 (1992) and Newcal Indus.,
`Inc. v. Ikon Office Sol., 513 F.3d 1038, 1048 (9th Cir. 2008)).
`However, such a market generally shows that the defendant
`exploited consumers’ unawareness of the restrictions on the
`aftermarket and must still show the cross-elasticity required
`to define a market. Id.
`
`

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`The relevant market can also be a two-sided market, with
`consumers on both sides of a platform.2 PLS.Com, LLC v.
`Nat’l Ass’n of Realtors, 32 F.4th 824, 837–39 (9th Cir.
`2022); see, e.g., Epic Games, 67 F.4th at 985 (discussing the
`“two-sided market for mobile-game transactions,” in which
`the relevant consumers are both game developers and users).
`Under these circumstances, an antitrust plaintiff must show
`anticompetitive impact on the “market as a whole.” Id. at
`839 (quoting Am. Express, 138 S. Ct. at 2287).
`Here, Plaintiffs-Appellants have not adequately defined
`the relevant market. Plaintiffs-Appellants’ FAC alleged in
`scattergun fashion that there were at least fifteen “relevant
`markets” pertinent to its antitrust claims but made no effort
`at all to define the markets or to distinguish them from one
`another.3 For example, Plaintiffs-Appellants did not clarify
`
`2 “[A] two-sided platform offers different products or services to two
`different groups who both depend on the platform to intermediate
`between them.” PLS.Com, LLC, 32 F.4th at 837 (quoting Am. Express
`Co., 138 S. Ct. at 2280). In American Express, the Supreme Court gave
`two examples of two-sided platforms: credit card companies and
`newspapers. “Credit card companies, the Court explained, sell credit to
`consumers on one side of the market and sell transaction-processing
`services to merchants on the other side of the market. Newspapers are
`also ‘arguably’ two-sided platforms: they sell advertising space to
`advertisers and news to subscribers.” Id. (citing Am. Express, 138 S. Ct.
`at 2280, 2286).
`(1) a
`3 Plaintiffs-Appellants’ alleged “relevant markets” are:
`“Smartphone Enhanced National Internet Access Devices” market; (2) a
`“smartphone market”; (3) a “single-product iOS Smartphone Enhanced
`Internet Access Device” market; (4) “[t]he iOS market”; (5) the “market
`for smartphone enhanced commerce and information flow (devices and
`apps) transacted via the national internet backbone”; (6) the “institutional
`app market”; (7) the “iOS institutional app market”; (8) the “iOS notary
`stamps” market; (9) the “iOS onboarding software” market; (10) the
`market for access rights to the iOS userbase; (11) the “national
`
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`11
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`whether the markets that Plaintiffs-Appellants identified are
`completely different from one another or whether they
`overlap. Plaintiffs-Appellants later impermissibly tried
`through a Motion to Strike to narrow their relevant markets
`to “two foremarkets” and “four downstream markets,” but
`our “[r]eview is limited to the complaint.” Lee v. City of Los
`Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (quoting
`Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th
`Cir.1993)).
`Even if we were to review the narrower set of markets
`posited in Plaintiffs-Appellants’ Motion to Strike, the
`alleged markets lack sufficient clarity to state an antitrust
`claim plausibly. See Am. Express, 138 S. Ct. at 2285. The
`FAC does not attempt to demonstrate the cross-elasticity of
`iOS end users’ demand either for Plaintiffs-Appellants’
`rejected apps as compared to other apps, or for apps in
`general, as it must. See Kaplan, 611 F.2d at 291-92. The
`FAC fails to draw the market’s boundaries to “encompass
`the product at issue as well as all economic substitutes for
`the product.” Hicks, 897 F.3d at 1120 (quoting Newcal, 513
`F.3d at 1045).
`allege
`Plaintiffs-Appellants
`the
`Additionally,
`downstream markets in a manner that implies that the Apple
`App Store’s apps constitute their own market, which
`amounts to an allegation of a single-brand market. This
`allegation fails because Plaintiffs-Appellants did not allege
`the prerequisites for a single-brand market. For example,
`Plaintiffs-Appellants do not demonstrate that iOS end
`consumers
`lacked awareness
`that buying an
`iPhone
`
`smartphone app distribution market”; (12) the “iOS App market”; (13)
`the “US iOS Device App market”; (14) the “market of COVID startups”;
`and (15) “the App Market.”
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`

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`constrains which apps would be available to them through
`the App Store. See Epic Games, 67 F.4th at 976–77 (“[T]o
`establish a single-brand aftermarket, a plaintiff must show
`. . . the challenged aftermarket restrictions are ‘not generally
`known’ when consumers make their foremarket purchase.”).
`Nor do Plaintiffs-Appellants demonstrate that iOS end users
`would, if they could do so more readily, obtain apps through
`means other than Apple’s App Store due to cost sensitivity
`or for other reasons. See id. at 976–77 (“[T]o establish a
`single-brand aftermarket, a plaintiff must show
`. . .
`‘significant’ monetary or non-monetary switching costs
`exist.”). To the extent that Plaintiffs-Appellants attempt to
`define a two-sided platform market, they fail to properly
`allege a relevant market (that is, a category of transactions
`between developers and consumers on a
`two-sided
`platform), given their reference to a broader market for
`smartphones and the corresponding ability to access apps
`outside of the Apple App Store’s two-sided platform. See
`id. at 976, 985.
`Because Plaintiffs-Appellants do not meet the threshold
`step of defining a relevant market, we reject their antitrust
`claims and need not proceed further with the analysis.
`Failing to define a relevant market alone is fatal to an
`antitrust claim. See Qualcomm, 969 F.3d at 992. Without a
`defined relevant market in terms of product or service, one
`cannot sensibly or seriously assess market power. See Epic
`Games, 67 F.4th at 975.
`Because the Plaintiffs-Appellants did not define the
`relevant market, it follows that they could not, and did not,
`establish that the Defendant-Appellee created an agreement
`that unreasonably restrained trade, as required for a Section
`1 claim. See Aerotec Int’l, 836 F.3d at 1177–78; Qualcomm,
`969 F.3d at 988. It also follows that they could not, and did
`
`

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`13
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`not, establish that the Defendant-Appellee possesses a
`market share in a relevant market sufficient to constitute
`monopoly power, nor did they show that there were existing
`barriers to entry to that market, as required for a Section 2
`claim. See Dreamstime.com, 54 F.4th at 1137.4
`Further, Plaintiffs-Appellants did not demonstrate that
`the Defendant-Appellee undertook anticompetitive conduct
`in that market sufficient to harm the competitive process as
`a whole. See id.; see also Brunswick, 429 U.S. at 489. Two
`of Plaintiffs-Appellants’ five apps did not get approved for
`distribution for reasons explicitly set out in the Developer
`Agreement and the DPLA. Antitrust law does not seek to
`punish economic behavior that benefits consumers. See
`Dreamstime.com, 54 F.4th at 1137. Disapproval of these
`two apps on grounds ostensibly designed to protect
`consumers, absent factual allegations to believe that these
`disapprovals occurred for pretextual reasons, does not
`suffice to demonstrate anticompetitive conduct. Further,
`Plaintiffs-Appellants have not explained why or how they
`could not distribute their apps by other means, even if not by
`their most preferred means.
`For all of these reasons, Plaintiffs-Appellants’ antitrust
`claims must fail.
`B. Breach of contract
`To state a breach of contract claim under California law,
`plaintiffs must show: (1) there was a contract, (2) plaintiff
`either performed the contract or has an excuse for
`nonperformance, (3) defendant breached the contract, and
`
`4 We do not address whether, under different circumstances, a complaint
`alleging antitrust claims could define a cognizable market encompassing
`the Apple App Store.
`
`

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`CORONAVIRUS REPORTER V. APPLE, INC.
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`(4) plaintiff suffered damages as a result of defendant’s
`breach. Hamilton v. Greenwich Invs. XXVI, LLC, 126 Cal.
`Rptr. 3d 174, 183 (Cal. Ct. App. 2011).
`Here, Plaintiffs-Appellants do not identify relevant
`specific provisions of the Developer Agreement or the
`DPLA, much less show that Apple breached a specific
`provision. Plaintiffs-Appellants contend that there is a
`“promise” in the Developer Agreement that “entities with
`‘deeply rooted medical credentials’ were permitted to
`publish COVID apps on the App Store.” But neither the
`Developer Agreement nor any other contract between
`Plaintiffs-Appellants and Defendant-Appellee contains any
`such guarantee. Instead, and sharply to the contrary, the
`DPLA specifically states that Apple has “sole discretion” to
`approve or deny requests to distribute apps on the App Store.
`Plaintiffs-Appellants’ contract claim fails because there was
`no breach of contract. Similarly, in an attempt to make a
`claim for breach of the covenant of good faith and fair
`dealing, Plaintiffs-Appellants simply repeat their breach
`allegations. This claim likewise fails.
`C. RICO or fraud
`To plead a civil claim under 18 U.S.C. § 1962(c) of the
`Racketeer Influenced and Corrupt Organizations (“RICO”)
`Act, Plaintiffs must allege “(1) conduct (2) of an enterprise
`(3) through a pattern (4) of racketeering activity (known as
`‘predicate acts’) (5) causing injury to plaintiff’s business or
`property.” Living Designs, Inc. v. E.I. Dupont de Nemours &
`Co., 431 F.3d 353, 361 (9th Cir. 2005) (quotation marks
`omitted). If a corporation is the enterprise, it cannot also at
`the same time be the RICO defendant. See Rae v. Union
`Bank, 725 F.2d 478, 481 (9th Cir. 1984). Parties must allege
`fraud with particularity under Federal Rule of Civil
`
`

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`CORONAVIRUS REPORTER V. APPLE, INC.
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`15
`
`Procedure 9(b), including the “who, what, when, where, and
`how of the misconduct charged . . . .” See Depot, Inc. v.
`Caring for Montanans, Inc., 915 F.3d 643, 668 (9th Cir.
`2019) (internal quotations and citations omitted).
`Here, Plaintiffs-Appellants allege
`that Apple and
`individuals within Apple’s App Store management, App
`Review, their counsel, and friends formed a RICO enterprise
`and engaged in predicate acts such as screening Plaintiffs-
`Appellants’ apps for purported compliance with the DPLA
`while appropriating Plaintiffs-Appellants’ ideas into Apple’s
`own competing apps, as well as wire and mail fraud by
`assigning Apple’s App Review employees to give false,
`pretextual reasons for rejecting the apps of small developers.
`These allegations center on the conduct of Apple and its
`employees without describing in any particularity conduct or
`activity outside of Apple as a corporation. As articulated,
`this claim makes Apple as a corporation both the enterprise
`and the RICO defendant, which is not permitted in a RICO
`claim. See Rae, 725 F.2d at 481. To the extent the Plaintiffs-
`Appellants attempt to make out a further claim for fraud,
`their allegations are vague and conclusory without the
`particularity required by FRCP 9(b). See Depot, Inc., 915
`F.3d at 668.
`D. Dismissal without leave to amend
`Federal Rule of Civil Procedure 15(a) states that leave to
`amend “shall be freely given when justice so requires,” but
`“[a] district court acts within its discretion to deny leave to
`amend when amendment would be futile[.]” Chappel v.
`Lab’y Corp. of Am., 232 F.3d 719, 725–26 (9th Cir. 2000).
`Here, the district court did not abuse its discretion in
`concluding that further amendment was not warranted.
`While the district court dismissed the Plaintiffs-Appellants’
`
`

`

`Case: 22-15166, 11/03/2023, ID: 12819362, DktEntry: 68-1, Page 16 of 16
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`16
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`CORONAVIRUS REPORTER V. APPLE, INC.
`
`first amended complaint in this case, Plaintiffs-Appellants
`were given a total of seven opportunities to amend similar
`complaints across
`jurisdictions and between various
`permutations of plaintiffs, but still failed to state their claims
`here adequately. It is within the district court’s discretion to
`determine that an eighth opportunity would produce a
`similar result. See Ryan, 786 F.3d at 759.
`E. Remaining motions
`Because the district court properly dismissed with
`prejudice all of the claims against Apple, it correctly denied
`the remaining pending motions as moot. The court also
`properly denied the motions for reconsideration by finding
`that the Plaintiffs-Appellants simply reiterated their prior
`claims and did not present newly discovered evidence or
`controlling law, nor an error of law or manifest injustice. See
`Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th
`Cir. 1993); Kerr, 836 F.3d at 1053.
`IV. CONCLUSION
`We affirm the decisions of the district court to dismiss
`Plaintiffs-Appellants’ FAC for failure to state any claim
`under Federal Rule of Civil Procedure 12(b)(6) and to deny
`Plaintiffs-Appellants’ motions for reconsideration and for
`preliminary injunction.
`AFFIRMED.
`
`
`