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 2016-03

Hanna Bernard v. Citimortgage Inc , 637 F. App'x 471 ( 2016 )


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  •                                                                              FILED
NOT FOR PUBLICATION
MAR 02 2016
UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HANNA BERNARD; et al.,                            No. 13-57158
Plaintiffs - Appellants,            D.C. No. 2:11-ml-02274-DSF-
PLA
v.
CITIMORTGAGE INC., a New York                     MEMORANDUM*
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted February 4, 2016
Pasadena, California
Before: CALLAHAN and N.R. SMITH, Circuit Judges and RAKOFF,** Senior
District Judge.
Hanna Bernard and others (“Plaintiffs”) appeal the district court’s order
denying their motion for class certification in their diversity action against
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
CitiMortgage Inc. (“Citi”). We have jurisdiction under 28 U.S.C. § 1291. We
affirm.
“A ruling on class certification ‘is subject to a very limited review and will
be reversed only upon a strong showing that the district court’s decision was a
clear abuse of discretion.’” Desai v. Deutsche Bank Sec. Ltd.,
    573 F.3d 931
    , 937
(9th Cir. 2009) (per curiam) (quoting In re Mego Fin. Corp. Sec. Litig.,
    213 F.3d 454
    , 461 (9th Cir. 2000)). Under this standard, we first “consider whether the
district court identified the correct legal standard.” United States v. Hinkson,
    585 F.3d 1247
    , 1251 (9th Cir. 2009) (en banc). We next “determine whether the district
court’s findings of fact, and its application of those findings of fact to the correct
legal standard, were illogical, implausible, or without support in inferences that
may be drawn from facts in the record.”
    Id. The parties 
    do not dispute that the district court identified the correct legal
standard for class certification as Federal Rule of Civil Procedure 23. Instead,
Plaintiffs contend that the district court’s application of Rule 23 was “illogical,
implausible, or without support in inferences that may be drawn from facts in the
record.”
    Id. The district 
    court did not abuse its discretion in denying certification under
Rule 23(b)(3). As required by Wang v. Chinese Daily News, Inc.,
    737 F.3d 538
    ,
2
545 (9th Cir. 2013), the district court’s analysis focused on the relationship
between the common and individual issues in the case. In doing so, the district
court determined that individual issues predominated over common issues, because
determination of the deadline by which Citi was allegedly required to grant or
deny permanent modification could not be made “simply by identifying the MED
[Modification Effective Date] as stated in the TPP [Trial Payment Plan
Agreement].” In re CitiMortgage, Inc. Home Affordable Modification Program
(HAMP) Litig., No. 11-2274,
    2013 WL 8844095
    , at *6 (C.D. Cal. Oct. 7, 2013).
Rather, such a determination would also require inquiry into issues unique to each
class member.
    Id. The district 
    court supported this conclusion with specific
examples. “The deadline may also have been affected by the parties’ course of
conduct, changes in income, inaccurately or incompletely reported income, oral
and written representations regarding documentation still needed and other
modification options, applicable Treasury Directives, and other considerations.”
    Id. The district 
    court then noted that these additional considerations were critical to
determining not only whether Citi had breached the TPP, but also the amount of
damages.
    Id. Because of 
    the importance of these individual factors, the district
court concluded that individual issues predominated over common issues, noting
3
that “it is clear that an evaluation of the merits of the proposed class claim would
require significant individualized inquiry.”
    Id. The district 
    court also did not abuse its discretion by denying class
certification under Rule 23(b)(1), because Plaintiffs failed to “affirmatively
demonstrate [their] compliance” with Rule 23(b)(1). Comcast Corp. v. Behrend,
    133 S. Ct. 1426
    , 1432 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes,
    131 S. Ct. 2541
    , 2551-2552 (2011)). As the district court noted, Plaintiffs’ footnoted
arguments under Rule 23(b)(1) were “cursory” and lacked “any substantive
explanation as to why the reasoning in [the cases Plaintiffs cited] would support
certification on the facts and law in this case.” In re CitiMortgage, Inc.,
    2013 WL 8844095
    , at *4.
Lastly, the district court did not abuse its discretion by denying class
certification under Rule 23(b)(2). For the first time on appeal, Plaintiffs
alternatively characterize their legal theory as seeking declaratory relief to qualify
under Rule 23(b)(2).1 Because this argument was not raised before the district
court, it is waived. O’Rourke v. Seaboard Surety Co. (In re E.R. Fegert, Inc.),
    887 F.2d 955
    , 957 (9th Cir. 1989).
1
Before the district court, Plaintiffs characterized their Rule 23(b)(2) theory
as seeking injunctive relief—i.e., to enjoin Citi from collecting certain fees and to
require corrective reporting.
4
AFFIRMED.
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