Accrediting Duty To Students
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GRACE KEAMS; JOLENE CORDERO;
BUNNY McCORKEY; individually and
on behalf of all others similarly
TEMPE TECHNICAL INSTITUTE, INC.,
ACCREDITING COMMISSION OF CAREER
SCHOOLS AND COLLEGES OF
ACCREDITING BUREAU OF HEALTH AND
EDUCATION SCHOOLS PROGRAMS
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted
October 8, 1996--San Francisco, California
Memorandum Filed December 6, 1996
Order and Opinion Filed March 26, 1997
Before: J. Clifford Wallace, Joseph T. Sneed, and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Sneed
Bruce A. Burke, Tucson, Arizona, for the plaintiffsappellants.
Mark L. Pelesh, Cohn and Marks, Washington, D.C.; David
L. White, White, Cummings & Longino, Phoenix, Arizona,
for the defendants-appellees.
The Memorandum disposition filed December 6, 1996, is
redesignated an authored Opinion by Judge Joseph T. Sneed.
SNEED, Circuit Judge:
Appellants, plaintiffs below, are Native American students
who attended Tempe Technical Institute (TTI) and took out
federally-guaranteed student loans. Appellees, the Bureau of
Health Education Schools/Programs ("ABHES") and the
Accrediting Commission of Career Schools and Colleges of
Technology ("ACCSCT"),1 are nationally recognized accrediting
agencies that accredited TTI. Appellants allege that
1 ACCSCT is the successor in interest to the national Association of
Trade and Technical Schools ("NATTS"). This memorandum treats all
actions by NATTS as if they were actions by ACCSCT.
ABHES and ACCSCT acted negligently by accrediting TTI.
The district court dismissed this claim for failure to state a
claim upon which relief can be granted. We have jurisdiction,
28 U.S.C. S 1291, and affirm.
Rule 12(b) of the Federal Rules of Civil Procedure provides,
in relevant part, as follows:
If, on a motion asserting the defense numbered (6)
to dismiss for failure of the pleading to state a claim
upon which relief can be granted, matters outside the
pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56,
and all parties shall be given reasonable opportunity
to present all material made pertinent to such a
motion by Rule 56.
When appellees filed their 12(b)(6) motions to dismiss, they
attached exhibits describing their accreditation procedures and
standards for accreditation. The district court did not exclude
these exhibits. Accordingly, appellants claim that the district
court should have treated appellees' 12(b)(6) motions as
motions for summary judgment.
 This court has held that a 12(b)(6) motion need not be
converted into a motion for summary judgment when matters
outside the pleading are introduced, provided that "nothing in
the record suggest[s] reliance" on those extraneous materials.
North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 582
(9th Cir. 1983). In the present case, the district court stated
that it did not rely on the exhibits submitted by ABHES and
ACCSCT to justify its legal conclusion that plaintiffs had
failed to state a claim upon which relief could be granted.
Hence, the district court did not err by treating appellees'
motions as motions to dismiss.
Appellants contend that the district court erred by denying
leave to amend the complaint to state a cause of action for
negligent misrepresentation. The standard by which we
review a denial of a motion to amend a complaint is abuse of
discretion. Maljack Productions v. Goodtimes Home Video
Corp., 81 F.3d 881 (9th Cir. 1996).
 Arizona recognizes the tort of negligent misrepresentation.
St. Joseph's Hosp. v. Reserve Life Ins., 742 P.2d 808,
813 (Ariz. 1987). Under Arizona law, the parameters of the
tort are defined by Section 552 of the Restatement (Second)
of Torts. Id. at 813. Appellants' initial complaint, filed in
March 1991, did not state a cause of action against ABHES
or ACCSCT under Section 552. Appellants later requested
leave to amend the complaint to state such a cause of action.
In a court hearing, the district judge repeatedly pressed appellants
to describe the factual basis for alleging a claim under
Section 552. In particular, she noted that Section 552 requires
false statements; four times she asked appellants for evidence
of false statements by appellees. Appellants failed to cite any
evidentiary support for an allegation that appellees had made
false statements. In light of appellants' failure to adduce any
such evidence, we hold that the district judge did not abuse
her discretion by denying appellants leave to amend their
The heart of appellants' claim is that ABHES and
ACCSCT negligently monitored and accredited TTI, thereby
causing appellants monetary damages. The district court dismissed
appellants' negligence claim for failure to state a
claim upon which relief can be granted. We review de novo
a district court's dismissal for failure to state a claim. Keams
v. Tempe Technical Institute, Inc., 39 F.3d 222, 227 (9th Cir.
Under Arizona law, to sustain an action for negligence,
plaintiffs must establish that "there is a duty or obligation,
recognized by law, which requires the defendant to conform
to a particular standard of conduct." Hamman v. County of
Maricopa, 775 P.2d 1122, 1125 (Ariz. 1989). Whether defendants
owe plaintiffs a duty is a question of Arizona state law.
Id. at 1125. Under Arizona law, its courts will impose a duty
"where both the plaintiff and the risk are foreseeable to a reasonable
person." Donnelly Const. Co. v. Oberg/Hunt/
Gilleland, 677 P.2d 1292, 1295 (Ariz. 1984).
 Appellants contend that it was foreseeable, to a reasonable
person in the position of ABHES and/or ACCSCT, that
negligent performance of their accreditation function would
cause precisely the type of harm alleged in this case, to precisely
the types of plaintiffs who advance those claims. The
district court specifically rejected this contention. It pointed
out that appellants had not presented sufficient evidence that
false information actually had been supplied; that no Arizona
case authority had recognized a duty of care creating liability
under facts analogous to these; and that the ABHES and
ACCSCT were under no public duty as is envisioned by Section
552(2)(3) of the Restatement (Second) of Torts. Finally,
appellants are unable to identify a single decision wherein any
court in the United States has held that accrediting agencies,
such as ABHES and ACCSCT, owe a tort law duty to students
who attend the schools accredited by those agencies.
Accordingly, we recognize that under Arizona law ABHES
and ACCSCT owed no duty to TTI students.
*** Any law, statute, regulation or other precedent is subject to change at any time ***
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