Martin F. Rooney, individually and on behalf of all others similarly situated v. Sierra Pacific Windows, a division of Sierra Pacific Industries, a California…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN F. ROONEY, individually and
on behalf of all others similarly situated,
Plaintiff - Appellant,
v.
SIERRA PACIFIC WINDOWS, a division
of Sierra Pacific Industries, a California
corporation,
Defendant - Appellee.
No. 11-17694
D.C. No. 5:10-cv-00905-LHK
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Lucy Koh, District Judge, Presiding
Argued and Submitted October 17, 2013
San Francisco, California
Before: THOMAS and McKEOWN, Circuit Judges, and KENDALL, District
Judge.**
FILED
MAR 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Virginia M. Kendall, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.

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Martin Rooney, individually and putatively on behalf of others similarly
situated, appeals the district court’s order granting judgment on the pleadings to
Sierra Pacific Windows (“SPW”) on Rooney’s claims under the Magnuson-Moss
Warranty Act and California’s Unfair Competition Law (“UCL”). Rooney also
appeals the district court’s order denying Rooney’s motion for leave to file a
second amended complaint. This is a diversity action under 28 U.S.C. § 1332(d)(2)
arising out of the purchase and subsequent repair or replacement of windows
covered by a written warranty. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
Rooney argues that SPW failed to provide the SPW Warranty in violation of
the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq. Specifically, Rooney
complains that SPW violated the “Pre-Sale Rule,” which requires that sellers of
consumer products with written warranties make the text of the warranties readily
available to prospective buyers. 16 C.F.R. § 702.3. We disagree. Whether SPW
complied with 16 C.F.R. § 702.3 is irrelevant here because Rooney has not
suffered an injury-in-fact as result of SPW’s failure to provide the SPW Warranty.
At the time of purchase, Rooney understood that the warranty for his
windows did not cover water penetration of the window unit. Thus, even if he had
pled that the purchased windows were non-tested, Rooney still would not have
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received coverage under the Terms and Conditions Warranty because his problem
with his purchased windows stemmed from water penetration. Nonetheless,
Rooney received warranty coverage based on the SPW Warranty.
Rooney is in the same position he would have been in had SPW provided the
SPW Warranty at the time of purchase. In fact, the SPW Warranty placed Rooney
in a better position than he would have been under the Terms and Conditions
Warranty alone, which is the warranty Rooney believed applied to his purchased
windows. SPW paid forty percent of the repair or replacement costs under the SPW
Warranty whereas SPW did not have to pay anything under the Terms and
Conditions Warranty. Consequently, Rooney received more than he bargained for
and could not have suffered an injury-in-fact under either the Magnuson-Moss
Warranty Act or the UCL. See Birdsong v. Apple, Inc., 590 F.3d 955, 961 (9th Cir.
2009) (explaining that plaintiffs could not establish an injury-in-fact when they
were not deprived of an agreed-upon benefit). Therefore, we affirm the district
court’s grant of judgment on the pleadings to SPW.
We also hold that the district court did not abuse its discretion in concluding
that Rooney failed to show good cause to modify the district court’s scheduling
order. Generally, we review a district court’s denial of leave to amend for an abuse
of discretion. In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716,
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736 (9th Cir. 2013). But we review a district court’s denial of leave to amend on
grounds of futility de novo. Hildes v. Arthur Andersen LLP, 734 F.3d 854, 859 (9th
Cir. 2013).
In this case, the district court entered a scheduling order that required
Rooney to file any proposed amendments to his complaint by December 2, 2010.
Rooney received a document production from SPW on May 3, 2011. This
production contained nearly all of the documents Rooney asked for and Rooney
had sufficient information to amend the complaint. Yet Rooney waited another
three months—until July 21, 2011 to seek leave to file his second amended
complaint. This was after SPW filed its motion for judgment on the pleadings. The
district court concluded that Rooney was not diligent in seeking leave to file a
second amended complaint. This was not an abuse of discretion in view of
Rooney’s undue delay, the prejudice to SPW, which had already filed a motion for
judgment on the pleadings, and futility of the amendment. See In re W. States
Wholesale Natural Gas Antitrust Litig., 715 F.3d at 738 (“This court considers the
following five factors to assess whether to grant leave to amend: (1) bad faith, (2)
undue delay, (3) prejudice to the opposing party, (4) futility of the amendment, and
(5) whether plaintiff has previously amended his complaint.”) (internal quotation
marks and citation omitted).
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With respect to the Magnuson-Moss Warranty Act claim, SPW’s alleged
technical violation, standing alone, did not cause the harm alleged by Rooney or
the members of the putative class. The Magnuson-Moss Warranty Act allows “a
consumer who is damaged by the failure of a supplier, warrantor, or service
contractor to comply with any obligation under this chapter . . . [to] bring suit for
damages and other legal and equitable relief.” 15 U.S.C. § 2310(d)(1). According
to his first amended complaint, both sub-classes “paid money to SPW to have the
Window Product(s) repaired or replaced.” But SPW’s failure to provide the SPW
Warranty did not cause this harm. The repair or replacement of windows would
have been necessary even if SPW had displayed the warranty at the time of
purchase. Consequently, SPW's failure to provide the SPW Warranty to consumers
could not have caused the harm alleged. The same is true with respect to the UCL.
Consequently, there can be no causal connection between SPW’s technical
violation of the Magnuson-Moss Warranty Act and the payments made to repair or
replace windows. As a result, Rooney lacks standing. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992).
And, as the district court correctly noted, Rooney could not amend his
complaint to allege harm caused at the time of purchase based on consumers
paying for a warranty that SPW did not disclose. Rooney conceded that all of the
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consumers purchased their windows more than four years before Rooney filed his
initial complaint. Because the statute of limitations for both of Rooney’s claims is
four years, any such amendment would be time-barred. See Hooper v. Lockheed
Martin Corp., 688 F.3d 1037, 1044 (9th Cir. 2012) (explaining that a federal court
applies the most closely analogous state statute of limitations when a federal statute
contains no express statute of limitations); Mexia v. Rinker Boat Co., Inc., 174 Cal.
App. 4th 1297, 1306 (2009) (providing that an action for breach of warranty under
the Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1790 et seq., has
four-year statute of limitations); Cal. Bus. & Prof. Code § 17208.
AFFIRMED.
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