Amy Sherlock, on her own behalf and on behalf of her minor children, T.S. and S.S v. Gina M. Austin, an individual

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMY SHERLOCK, on her own behalf and
on behalf of her minor children, T.S. and
S.S,
Plaintiff-Appellant,
and
ANDREW FLORES, an individual,
Plaintiff,
v.
GINA M. AUSTIN, an individual; AUSTIN
LEGAL GROUP APC, a California
Corporation; JOEL R. WOHLFEIL, an
individual; LAWRENCE GERACI, AKA
Larry, an individual; TAX & FINANCIAL
CENTER, INC., a California Corporation;
REBECCA BERRY, an individual;
JESSICA CLAIRE MCELFRESH, an
individual; SALAM RAZUKI, an individual;
NINNUS MALAN, an individual;
MICHAEL ROBERT WEINSTEIN, an
individual; SCOTT TOOTHACRE, an
individual; ELYSSA KULAS, an individual;
FERRIS & BRITTON APC, a California
Corporation; DAVID S. DEMIAN, an
individual; ADAM C. WITT, an individual;
No. 23-55018
D.C. No.
3:20-cv-00656-JO-DEB
MEMORANDUM*
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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RISHI S. BHATT, an individual; FINCH,
THORTON, AND BAIRD, a Limited
Liability Partnership; JAMES D. CROSBY,
an individual; ABHAY SCHWEITZER,
DBA Techne, an individual; JAMES
BARTELL, AKA Jim, an individual;
BARTELL & ASSOCIATES, a California
Corporation; NATALIE TRANGMY
NGUYEN, an individual; AARON
MAGAGNA, an individual; A-M
INDUSTRIES, INC., a California
Corporation; BRADFORD HARCOURT, an
individual; ALAN CLAYBON, an
individual; CITY OF SAN DIEGO, a
municipality; 2018FMO, LLC, a California
Limited Liability Company; FIROUZEH
TIRANDAZI, an individual; MICHAEL
TRAVIS PHELPS, an individual;
DOUGLAS A. PETTIT, an individual;
JULIA DALZELL, an individual; DOES, 3
through 50, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Jinsook Ohta, District Judge, Presiding
Submitted December 6, 2023**
Pasadena, California
Before: CALLAHAN, R. NELSON, and BADE, Circuit Judges.
Plaintiff-Appellant Amy Sherlock (Sherlock) appeals the district court’s final
** 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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judgment dismissing, under Federal Rule of Civil Procedure 41(b), her antitrust
conspiracy claims. The case was involuntarily dismissed for failure to prosecute
after Sherlock declined to amend her First Amended Complaint (FAC). The district
court dismissed some claims in the FAC with prejudice on immunity grounds and
dismissed the remaining claims without prejudice—and with express leave to
amend—for lack of standing.
In the FAC, Sherlock asserted her antitrust conspiracy claims under 42 U.S.C.
§ 1983 based on her dissatisfaction with two state-court rulings. The district court,
in dismissing the FAC, held that the Noerr-Pennington Doctrine—under which
“those who petition any department of the government for redress are generally
immune from statutory liability for their petitioning conduct,” Sosa v. DIRECTV,
Inc., 437 F.3d 923, 929 (9th Cir. 2006) (citation omitted)—barred relief. We have
jurisdiction to review the Rule 41(b) dismissal under 28 U.S.C. § 1291, and we
review for an abuse of discretion. Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th
Cir. 2002); Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890 (9th Cir.
2019).
Sherlock asserts that her appeal raises “one issue”—whether the district court
properly applied the Noerr-Pennington Doctrine when it dismissed the FAC. But
the real issue before us is whether the district court abused its discretion when it
involuntarily dismissed her case. We hold that the district court did not abuse its

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discretion in dismissing the entire action under Rule 41(b) in light of Sherlock’s
unreasonable delay, the public’s interest in speedy litigation, and the court’s need to
manage its docket. See Pagtalunan, 291 F.3d at 642. Likewise, the risk of prejudice
to the defendants weighed in favor of dismissal. Hernandez v. City of El Monte, 138
F.3d 393, 400–01 (9th Cir. 1998).
At bottom, however, Sherlock has not adequately briefed either the argument
she claims is before us or any reason why the dismissal of her case was an abuse of
discretion. Parties must make arguments “specifically and distinctly in [their]
opening brief.” Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir.
2003) (citation omitted). Here, the body of the opening brief is a mere seven pages,
and the argument section is not even two pages. The brief fails to explain why the
case’s dismissal was improper. Instead, Sherlock suggests that her failure to amend
the FAC despite having leave to do so was reasonable if “the trial court erred” when
it held that “F&B’s petitioning was immunized by the Noerr-Pennington doctrine,”
and dismissed the FAC on that basis. But her brief does not explain the Noerr-
Pennington Doctrine or the sham-petitioning exception to that doctrine. And she
makes no attempt to show why, on the facts here, that exception should apply.
Accordingly, the “one issue” that Sherlock claims is before us is waived, as is
the ancillary, yet similarly inadequately briefed, claim that the district court abused
its discretion by dismissing her case under Rule 41(b). See Maldonado v. Morales,

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556 F.3d 1037, 1048 n.4 (9th Cir. 2009) (“Arguments made in passing and
inadequately briefed are waived.” (citation omitted)).
AFFIRMED.

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