*1 744 Soderlings married liabilities, were tor said that the Soderling’s tax of Mr.

knew Mrs. to show that agree “key moment” conspiratorial of a existence “[t]he Soderling’s tax lia Soderling knew of Mr. inferred purpose or common ment bilities, not mar Soderlings were Kra but the States v. United from evidence.” However, single (9th 1987). time. 253, ried at sovich, 255 Cir. Soderlings’ conduct, not affect the including Mrs. misstatement did Soderlings’ at trial rights. Evidence dem personal bank substantial second Soderling opening a already Soderling was manage funds for onstrated that Mrs. receive account to Soderling to Mr. both strongly connected immediately after business her husband’s account, personally professionally “would be corporate levy on the Moreover, Soderling’s Mrs. only meeting. of of the terms reasonably explainable stat closing argument correctly Ingram v. counsel at taxation.” to evade motivation 672, 679, meeting “shortly before States, 79 S.Ct. U.S. 360 United (1959). v. marriage.” evi 1314, their 1503 Sufficient 3 L.Ed.2d Cf. (9th 1028, 1037 Flores, F.3d Cir. tax convic 802 evasion supports dence also tion, period, limitations Mr. during the AFFIRMED. large person number Soderling made a which money, using corporate purchases al of tax evasion. Simi powerful evidence requisite showed

larly, the evidence

“deceit, trickery, or ... means craft v. Hammerschmidt

that are dishonest.” States, 44 S.Ct. 265 U.S.

United (1924).

511, Proof of dishon 68 L.Ed. necessary to convict under 18

est means 371, conspira but .“[n]either Plaintiff-Appellant, NDIGWE, Emeka used to achieve goal nor the cy’s means v. illegal.” United independently to be need COMPANY, INDEMNITY ALLSTATE 1056, 1059 Caldwell, F.2d v. States Erroneously as Allstate Insur Sued 1993), grounds by on other overruled Defendant-Appellee. Company, States, 1, 8-9, 119 527 U.S. Neder United (1999). Given 144 L.Ed.2d 35 S.Ct. No. 15-56813 above, jury could the actions discussed of Appeals, Court States United Soderlings reasonably have found Ninth Circuit. beyond a rea engaged in means dishonest doubt. sonable Argued May and Submitted plain

3. error due to There was Vacated June Submission closing alleged prosecutorial misconduct October Re-Submitted mis argument. assessing prosecutorial Pasadena, California conduct, whether, “the considered issue 17, Filed October trial, in the context of the that con entire appears likely duct to have affected

jury’s duty judge discharge of fairly.” United States

evidence

Henderson, 241 (citation omitted). Here, prosecu *2 Indemnity Company

Allstate over unin- motorist coverage for an auto acci- At our request argument, dent. oral after the district court clarified that the case was dismissed as sanction under a Federal 41(b). Rule Civil Procedure We have jurisdiction affirm. us, original

In the case’s posture before basis somewhat unclear. On October the district court entered first dismissal 12(b)(6), order under Rule and ordered Ndigwe to complaint by file amended expressly November 2015. The court to timely cautioned “that failure Complaint may file a First Amended result being in this prej- action dismissed without prosecute udice failure to failure and/or comply to with a court order” under Rule 41(b). Ndigwe did not file an amended complaint or advise the district court that he did not intend to amend. On November 9, 2015, the district court entered second final dismissing order the case without prosecution “for lack of and fail- to comply ure with the orders Onwaeze, Ogochukwu Attorney, Victor court.” Group, Angeles,

Onwaeze Law Ape, Los clarify to district court asked CA, for Plaintiff-Appellant to it intended dismiss the com- Klee, Esquire, Dougan Peter 41(b) Karin Vo- plaint a sanction as under Rule gel, Esquire, Attorney, Sheppard 12(b)(6). Mullin failure state a claim under Rule LLP, Hampton CA, Richter Diego, & San responded district court with a “Clari- for Defendant-Appellee fication confirming Order” that the action dismissed was. sanction under Rule FRIEDLAND, Before: CLIFTON and 41(b) comply with DONATO,* Judges, Circuit District requiring the order amendment to oth- Judge. the case. See Harris v. prosecute erwise Mangum, ** MEMORANDUM 2017) (“When a district court dismisses an Ndigwe appeals

Plaintiff Emeka the dis- action plaintiff because the not has filed an missal of his lawsuit Defendant being given amended after leave Donato, The Honorable James disposition appropriate publi- ’ Judge District for the Northern District of precedent except provid- cation and is not California, sitting by designation. Rule Ninth Circuit 36-3. indicating ing and has not notified the court of dis- to do so record not to an amended com- his intention file trict abused its discretion. we deem the dismissal plaint, Consequently,, find that the district we comply for failure with a order court did not its discretion in abuse dis- based on Federal Rule of Civil Procedure 41(b). missing Ndigwe’s case under Rule *3 41(b).” (citations omitted)). The district express no about the of merits court confirmed that the final dismiss- also or the his claims Allstate distridt prejudice. al was without 12(b)(6). analysis court’s Rule únder of abuse discretion the We review AFFIRMED. of an action for to comply dismissal order requiring with the district court’s CLIFTON, Judge, concurring: Circuit complaint. of an Fer submission amended agree I majority with the dis- (9th Bonzelet, 1258, 1260 dik F.2d court, authority to trict had the the dismiss 1992). Ndigwe’s respond Cir. failure to in 41(b). as a sanction under Rule I action way to the court’s district amendment concur in entirely therefore the result and plaintiffs warranted A in order dismissal. reasoning majority’s in expressed dis- face court’s action in the “ultima position. amending tum—either I separately, express write indicating to the that it will not my concern with the district court’s properly met sanction of under- so—is with the a 41(b) interpretation of lying California insurance Rule dismissal.” Edwards Marin law; Inc., (9th namely, Park, allege failed F.3d Cir. under Cali- 11580.2(b) fornia Insurance section Code applied factors to a Rule corresponding and the uninsured motorist 41(b) point to the same result. in provisions his with All- insurance sanction, dismissing a Before case as application state. The of California insur- “(1) court should the pub- district consider: ultimately question ance law is for the expeditious in resolution of lic’s interest courts, my in California individual view (2) manage litigation; the court’s need interpretation the district of court’s (3) docket; its risk of of not per- and California law was (4) public policy favoring party; grant- not be taken for suasive should merits; disposition of on their cases if question again. and when the arises (5) availability of less drastic sanc- particular, I believe definition Inc., v. Nu Image, tions.” Dreith of “uninsured in vehicle” (internal quotation a motor applica- includes has omitted). mayWe affirm our marks when insurance insurer either ble indicates independent review of the record coverage. admit refuses to not abuse the district factors, though claim even Because merits discretion these interpretations explicit conflicting made find- rest the court have Yourish in his ings at the time v. uninsured motorist insur- dismissal. policy, helpful briefly to first Amplifier, ance 1999) (internal omitted). background citation While the summarize California law governing final interpretation dismissal order did not insurance district factors, here, As are policies. order relevant there two its clarification address detail, must follow principles them we find noth- courts discussed interpreting policies insurance under Cali- definitions in section which are fornia law. incorporated by into all reference insur policies in California. See Cal. Cas. First, legitimate regarding uncertainties Indemn. Exch. v. 82 Cal. 3d insurance coverage interpreted must be 789, 794, 147 (1978) (“Section Cal.Rptr. 348 favor of Specifically, the insured. “[Califor- 11580.2 part every becomes a insurance generally ambiguities nia] resolve[s] fa- policy as if it provi written into its were vor coverage. Similarly, gen- [California] sions.”). erally interprets] clauses of policies broadly, to pro- order relevant de- tect the objectively expecta- reasonable fines motor vehicle” to in- tions of the insured.” Montrose Chem. (1) any clude vehicle which there Corp. Co., v. Admiral Ins. 4th is no liability at the *4 42 Cal.Rptr.2d 913 P.2d 878 accident, (2) time as well any (citations (1995) quotation and internal motor liability which there omitted). marks principle of interpre- insurance applicable at the time of the tation on principles is based dual of con- accident but company the insurance later tract law and fairness. Because the insur- coverage denies thereunder. See Cal. Ins. company ordinarily ance policies, drafts its (“As in this sec- Code used and party ordinarily because the insured tion, motor ‘uninsured vehicle’ means a has little to opportunity bargain no for motor respect vehicle with to the owner- policy language, policy modifications ship, maintenance or use of which there is language must be construed bodily no injury liability ap- insurance ... drafting insurance company. Id. accident, plicable at the time of the

Second, applicable there is the ... policies insurance must insurance but be inter writing preted plain company accordance their -the insurance ... with and thereunder”). coverage common meaning. apply To principle, Under statute, “the the relevant layman be read as a we should might would read it can understand section and as it be ana ask lyzed by questions three attorney an if there an insurance ex determine (1) Co., coverage: uninsured pert.” Delgado v. motorist whether Heritage Ins. Life (2) 262, 271, insurance; App. liability 157 Cal. the tortfeasor Cal.Rptr. 3d had (1984) (citation whether quotation applicable and internal insurance was at omitted). accident; (3) the time of semantically permis marks “[I]f sible, at given the contract such con insurance was the time of the will accident, fairly object struction as will the tortfeasor’s insur- achieve company coverage later providing indemnity for loss to which denied under (citations policy. the insurance relates.” Id. omitted). quotation

internal marks In determining Ndigwe failed to Turning specific policy provi to the plausibly allege now motorist cover here, sion at Ndigwe’s policy pro that, issue age, the district court held vides 11580.2(b), caused car no there can be such involving when, here, accidents auto.” “uninsured the tortfeasor accident, to in defines “uninsured auto” at insurance the time of the had clude “motor vehicle for which the company its insurance later denies coverage.” insurer denies This definition is third-party arising for a claim so, based on doing vehicle” out of the the dis accident. in- Califor would his situation. primarily relied cover had trict court surance, in an accident that wasn’t Appeal’s decisions in he was nia Court Califor fault, damages, Casualty Indemnity Exchange v. his he the driver nia suffered App. responsible 3d the accident did not cover insurance, (1978), Ndigwe’s Denny v. St. damages with Cal.Rptr. 348 Co., fault, either, Insurance reason Guardian that wasn’t Paul 73, 77-78, yet Cal.Rptr. 520 and was who left hold- 3d that, (1987), purposes ing bag. which held there Ndigwe’s interpretation is consistent par insured with that of C. Clifford’s Robert California ty’s “applicable” vehicle has no covered Law, “leading trea Uninsured Motorist the accident due tise on insurance law.” Farm [California] party’s pol in that Kim, Ins. ers 2013 WL Exch. icy. (Cal. 2013) (unpublished). *3 Ct. reasoning, provides The district relevant the treatise following supported analysis regarding California law. uninsured mo is not well arising torist of a coverage claims out dis above, re- As discussed law California pute and his between the tortfeasor insur quires interpret that we the terms of ance company: Ndigwe’s policy accordance with then- *5 § In the Insurance] Code construing in plain meaning, ambiguities of vehicle” definition includes light Ndigwe. interpre- favor these applicable a motor vehicle that has in- appears principles, tive did surance if the either cov- insurer denies coverage in allege uninsured motorist fact erage coverage to admit refuses ex- review, Ndigwe’s policy defines here. To cept conditionally or with reservation. any to “motor an “uninsured auto” include The purpose give of this is to definition for which the insurer denies cover- injured right proceed the party a to 11580.2(b) age.” Similarly, defines section provision under if an motorist motor vehicle” to include an “uninsured dispute there is coverage between the vehicle for which is the any motor “there tortfeasor and his or her If insurer.... company ... liability adverse insurer driver’s coverage ... writing denies does not furnish policy maintains its literally That what thereunder.” describes coverage accident, the “insured” happened Ndigwe was allegedly here. vehicle is an “uninsured” vehicle. by another the time At rear-ended driver. accident, Clifford, the other car insured Motorist was Cal. Uninsured Law (2017). Company 6.70 by Alliance Insurance United Alliance, (Alliance). denied later section, In the pro- same treatise accident, be- coverage purportedly for the vides that when the tortfeasor’s insurance to cooperate failed cause insured company coverage for to investigation into the accident. Alliance’s cooperate investigation of acci- tHe to alleged, As these facts are sufficient dent, the becomes tortfeasor motorist trigger uninsured 11580.2(b): purposes motorist for of section Ndigwe’s policy. the terms of A involving the common situation denial coverage by the surprising at all tortfeasor’s is It not insurer is unin- breaches expectation coop- the tortfeasor had a reasonable policy eration clause and refuses paid that he sured motorist to assist in his Clearly, erage defense.... the named in the insurer denies because of sured of their members household. Hos clause, cooperation kin, the breach 797-98, 3d at vehicles becomes “uninsured.” Cal.Rptr. 348; Denny, 196 Cal. 3d at 75, 78, 241 Cal.Rptr. rejecting 520. In exactly cov Id. That the situation here. erage, Denny Hoskins and were aimed at precedents on which the district enforcing specific policy exclusions in the relied, Denny, Hoskin and not policies: claimants’ own namely, prohib speak to this situation. another federal iting claimants from “attempt[ing] uti district observed, California has lize exclusions within the liability sections Hoskin not specific provi- discuss of an insured’s own policy automobile sion at issue in this trigger the insured’s uninsured is, motorist case: that whether tortfeasor’s in- coverage.” Allen, 2005 WL at *5. company surance coverage.” “denie[d] Ins. America v. Nadalsky, Co. Safeco That the situation howev- (C.D. 2013 WL at *3 Cal. Feb. er. Unlike the claimants in Hoskin and Rather, (unpublished). Hoskin and Denny, Ndigwe was not attempting Denny interpreted provision instead side-step his own exclusions by in- that addresses whether seeking stead coverage under the unin- the tortfeasor “applicable had insurance motorist in his policy. See the time of the accident.” Hoskin, 82 Cal. App. 3d at In interpreting provision, Hoskin Rptr. 348 (rejecting claim for uninsured and Denny only that “the question held “where car is insured liability policy ‘applicable’ general under the terms of a policy” but the time of the accident resolved without is found “inapplicable to the regard to policy precluding pay accident”), claim created injured ment to an insured.” Farmers Ins. Rather, Ndigwe sought uninsured motorist *6 Allen, 668821, Exch. v. 2005 at *6 WL car because the that rear-ended (Cal. App. (unpublished). Ct. For him was insured at the the acci- Hoskin, example, in the insured claimant dent, but Alliance later denied (a mother) was denied uninsured motorist through Ndigwe’s. fault of Hoskin and injuries sustained a car Denny simply facts, apply to these accident while she was a passenger her I and do not believe that it was correct to being ear by that was driven her son. extend Denny Hoskin and in the manner 791-92, 3d at 147 done so the district court. Cal.Rptr. Similarly, in Denny, 348. the in That does not change the claimant outcome was denied uninsured mo case, of Ndig- torist because injuries sustained in a we’s on the car accident while she affirmed based passenger to respond to the a substitute vehicle dismissal without using that she was her car at without either an Denny, own the time. 196 amended com- Cal. plaint Cal.Rptr. 3d at notice to the 520. both district court cases, prior filing. the court on his held the claimants elected stand could not establish motorist cov But our affirmance of the ultimate dismiss- erage for their because al should not to affirm the there were be understood specific policy reasoning claimants’ insurance law behind the initial respective policies I, one, own precluded cov dismissal. conclude that THOMAS, Judge, Chief Before: under the received benefits

should have SILVERMAN, Circuit TROTT and coverage. Judges.

MEMORANDUM appeals II Marvin Thomas Shoemaker affirmance of the Com- the district Security’s of his denial missioner Social disability insurance benefits application II XVI of the Social under Titles jurisdiction under Security Act. We have SHOEMAKER Marvin Thomas 405(g). § 42 U.S.C. 1291 and II, Plaintiff-Appellant, Colvin, novo, Attmore review de 2016), af- and we BERRYHILL, Acting Nancy A. firm. Security, Social Commissioner Defendant-Appellee. I

No. 15-35858 Judge did not Law The Administrative affording only weight” “some to the err in Appeals, Court Dr. Eck- examining psychologist opinion Ninth Circuit. examining Dr. Eckstein’s stein. Because January 2018 San Submitted inconsistent with medi- opinion was Francisco, California record, the ALJ had to cal evidence January legitimate Filed reasons” provide “specific and Lester v. opinion.1 reject Dr. Eckstein’s

Chater, legitimate gave The ALJ two Dr. Eckstein’s giving reasons weight.” “some Baron, Esquire, Attorney, Robert A. First, prepared the ALJ noted PC, Manning, Ka- Baron & Harder Wells provided Dr. Eckstein form filled out Tassinari, Attorney, Ka- Esquire, thryn to no limita- that correlate only options *7 PC, OR, Tassinari, Eugene, thryn Lawyer, tions, limitations, limi- or extreme marked Plaintiff-Appellant limiting, the tations. the form was Because Portland, Gowie, DOJ-USAO, Dr. Eckstein’s narra- ALJ instead credited Renata “may permissibly An OR, evaluation. ALJ tive Defendant-Appellee 2012), because Dr. Eck unanimously panel concludes this case argument. testing oral for decision without suitable stein’s was based 34(a)(2). See Fed. R. P. argu physicians not consider. This Though merit. Dr. Eck ment does not have appropriate publi- disposition is not except provid- precedent for assess employed cation and is not a different method stein functioning, Ninth Circuit Rule 36-3. psychological ing Shoemaker’s sought the same characteris she to evaluate argues stan 1. Shoemaker agency psycholo tics Dr. Salbador and gave "clear and the ALJ dard Astrue, reasons, gists convincing” did. Hill v.