As the Ninth Circuit observed in Imagineering, 976 F.2d at 1312, "Essentially, the [proximate cause] rule has more to do with problems of proof than foreseeability." The problems of proof in this case, where the injuries alleged are the likely byproduct of a wide range of contributing factors, are simply too momentous for plaintiffs to overcome. The Court finds, therefore, that the Sheperd plaintiffs have failed to allege a concrete financial loss which resulted directly from the wrongful conduct of defendants. Hence plaintiffs lack RICO standing. Accordingly, the Court will grant defendants' motions to dismiss plaintiffs' RICO claims.
B. Plaintiffs' Request for Leave to Amend
In the last line of the final page of their supplemental brief, plaintiffs request that if the Court should grant defendants' motion to dismiss, that plaintiffs be granted leave to amend their complaint to "he in compliance with any rulings the Court may issue." Plaintiffs have utterly failed to state any grounds for their request, nor have they given the Court any indication as to how they would amend their complaint consistent with the Court's rulings and the confines of Rule 11 Fed.R.Civ.P.
Although leave to amend shall be freely given when justice so requires, Fed.R.Civ.P. 15(a), futile amendments should not be permitted. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); Smith v. Commanding Officer, Air Force Accounting, 555 F.2d 234, 235 (9th Cir. 1977). The proper test to be applied when determining the legal sufficiency of a proposed amendment is identical to the one used when considering the sufficiency of a pleading challenged under Rule 12(b)(6) of the Federal Rules of Civil Procedure. 3 J. Moore, Moore's Federal Practice § 15.08 (2d ed. 1974).
Here the Court finds that amendment by plaintiffs would likely be futile in light of the Court's discussion in part II-A of this Order. Accordingly, the Court will tentatively deny plaintiffs' request for leave to amend. Nonetheless, the Court will consider a motion for reconsideration of this decision if filed by plaintiffs no later than January 29, 1993. Any such motion should state with specificity how plaintiffs propose to amend their complaint to overcome the deficiencies discussed in this Order. The Court's tentative ruling on amendment will become final if no motion is timely filed.
C. Pendent State Law Claims
The Court will, in the exercise of its discretion, decline to exercise jurisdiction over plaintiffs' remaining pendent state law claims. Since this case was removed to federal court, the Court shall remand the case to the Superior Court of Contra Costa County from whence it came. Jurisdiction, however, shall temporarily remain in this Court pending the Court's consideration of any timely motion for reconsideration which may be filed by plaintiffs pursuant to paragraph four below.
For all of the reasons stated above, the Court hereby ORDERS that:
(1) Defendants' motions to dismiss are granted with respect to plaintiffs' RICO claims;
(2) Plaintiffs' request for leave to amend the complaint is tentatively denied;
(3) All remaining state law claims -- breach of contract, breach of covenant of good faith and fair dealing, fraud, negligent misrepresentation, intentional interference with prospective economic advantage, negligent interference with prospective economic advantage -- shall be remanded to the Superior Court of Contra Costa County in light of this Court's decision to not exercise its supplemental (pendent) jurisdiction over these claims. Jurisdiction, however, shall remain in this Court pending the Court's consideration of a motion for reconsideration which may be filed by plaintiffs pursuant to paragraph four.
(4) Plaintiffs are invited to file a motion for reconsideration of the Court's decision to deny leave to amend, stating with specificity how they propose to amend the complaint to overcome the deficiencies discussed in this Order. Plaintiffs' motion, if any, as well as any accompanying memorandum may be filed no later than January 29, 1993. Defendants may respond with opposition briefs no later than February 5, 1993;
(5) This Order shall automatically become the Court's final ruling in this case if plaintiffs fail to timely file a motion for reconsideration pursuant to paragraph four above.
(6) The Clerk of the Court, without delay, shall mail a copy of this Order to all parties in this case.
IT IS SO ORDERED.
DATE: January 25, 1993
EUGENE F. LYNCH
United States District Judge