Harvinder Singh v. American Honda Finance Corp. ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARVINDER SINGH, No. 17-35964
Plaintiff-Appellant,
D.C. No.
v. 2:17-cv-00287-
JCC
AMERICAN HONDA FINANCE
CORPORATION,
Defendant-Appellee.
HARVINDER SINGH, No. 17-35967
Plaintiff-Appellant,
D.C. No.
v. 2:17-cv-00287-
JCC
SORAYA MOTOR CO.; ARIANNA
MOTOR COMPANY INC.; HOOMAN H.
BODAGHI, DBA HINSHAW’S HONDA; OPINION
HONDA OF AUBURN; HOOMAN
HONDA; HOOMAN MOTORS GROUP;
HINSHAW ACURA; HOOMAN ACURA,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
2 SINGH V. AMERICAN HONDA FINANCE CORP.
Argued and Submitted March 4, 2019
Seattle, Washington
Filed May 30, 2019
Before: Ronald M. Gould and Richard A. Paez, Circuit
Judges, and Cynthia A. Bashant, * District Judge.
Opinion by Judge Gould
SUMMARY **
Class Action Fairness Act
The panel affirmed the district court’s grant of summary
judgment to defendants in a putative class action against the
American Honda Finance Corporation and various car
dealerships alleging defendants failed to provide plaintiff
with add-ons that were promised in the Dealer Addendum
when plaintiff bought his new Honda Accord.
Plaintiff brought a putative class action in Washington
state superior court, and defendant American Honda Finance
Corporation removed the case to federal court under the
Class Action Fairness Act. Plaintiff moved to remand, but
the district court denied that motion. Plaintiff then amended
his complaint to assert a federal claim under the Truth in
*
The Honorable Cynthia A. Bashant, United States District Judge
for the Southern District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SINGH V. AMERICAN HONDA FINANCE CORP. 3
Lending Act. After further motion practice and discovery,
the district court granted summary judgment for defendants
and dismissed plaintiff’s claims.
The panel first held that plaintiff preserved his objection
that removal was improper because he timely moved to
remand the case to state court following removal. The panel
held that the district court did not have subject-matter
jurisdiction over this action at the time of removal because
the Class Action Fairness Act’s home state exception barred
the exercise of jurisdiction. The home state exception
applied because the dealership defendants were the primary
defendants responsible for the direct harm to consumers and
two-thirds or more of the members of the proposed plaintiff
classes in the aggregate were citizens of Washington State.
The panel nevertheless held that the district court had
subject-matter jurisdiction at the time it rendered a final
decision on the merits, because plaintiff voluntarily amended
his complaint to assert a federal Truth in Lending Act claim.
On the merits, the panel held that the district court
properly granted summary judgment to the dealership
defendants and the American Honda Finance Corporation.
The panel concluded that considering all the extrinsic
evidence offered, plaintiff had not demonstrated a genuine
issue of material fact as to whether he was promised an add-
on that he did not receive. The panel also determined that
the district court did not abuse its discretion in denying
plaintiff’s request for more time for discovery.
4 SINGH V. AMERICAN HONDA FINANCE CORP.
COUNSEL
Robert Joseph Gaudet Jr. (argued), Karin Gaudet-Asmus,
Seattle, Washington; Hardeep S. Rekhi and Gregory Wolk,
Seattle, Washington; for Plaintiff-Appellant.
Sean Ashley Commons (argued), Sidley Austin LLP, Los
Angeles, California; Aaron Paul Riensche (argued) and
Jeffrey D. Dunbar, Seattle, Washington; Bruce Hamlin,
Lane Powell PC, Seattle, Washington; Michael C. Andolina,
Sidley Austin LLP, Chicago, Illinois; for Defendant-
Appellee.
OPINION
GOULD, Circuit Judge:
Plaintiff-Appellant Harvinder Singh purchased a new
Honda Accord from Hinshaw’s Honda in Auburn,
Washington. To finance his purchase, Singh obtained
financing from Defendant-Appellee American Honda
Finance Corporation (“AHFC”). 1 Singh later brought this
suit as a putative class action in Washington state superior
court against AHFC and the Dealership Defendants. AHFC
removed the case to federal court under the Class Action
Fairness Act (“CAFA”). Singh moved to remand, but the
district court denied that motion. Singh then amended his
1
The other Defendants-Appellees in this action are Soraya Motor
Co., Arianna Motor Company, Inc., Hooman H. Bodaghi, Honda of
Auburn, Hooman Honda, Hooman Motors Group, Hinshaw Acura, and
Hooman Acura. We refer to these entities and Hinshaw’s Honda,
collectively, as the “Dealership Defendants.” Singh alleges that Hooman
Bodaghi owns or is the alter ego of each of the named dealerships.
SINGH V. AMERICAN HONDA FINANCE CORP. 5
complaint to assert a federal claim under the Truth in
Lending Act (“TILA”), 15 U.S.C. §§ 1601–1667f. After
further motion practice and discovery, the district court
granted summary judgment for the Dealership Defendants
and AHFC and dismissed Singh’s claims.
On appeal, Singh contends that the district court lacked
subject-matter jurisdiction at the time of removal and, for
that reason, erred when it denied his motion to remand.
Singh also contends that the district court erred in granting
summary judgment against him. Finally, Singh contends
that the district court did not permit him sufficient discovery
before granting summary judgment.
We hold that the district court did not have subject-
matter jurisdiction over this action at the time of removal
because CAFA’s home state exception barred the exercise of
jurisdiction. However, the district court had subject-matter
jurisdiction at the time it rendered a final decision on the
merits, because Singh voluntarily amended his complaint to
assert a federal TILA claim. “To wipe out the adjudication
postjudgment, and return to state court a case now satisfying
all federal jurisdictional requirements, would impose an
exorbitant cost on our dual court system, a cost incompatible
with the fair and unprotracted administration of justice.”
Caterpillar Inc. v. Lewis, 519 U.S. 61, 77 (1996). We
decline to impose such a cost.
On the merits, we hold that the district court properly
granted summary judgment to the Dealership Defendants
and AHFC. We also hold that the district court did not abuse
its discretion in denying Singh’s request for more time for
discovery. We affirm the district court’s judgment in full.
6 SINGH V. AMERICAN HONDA FINANCE CORP.
I
In February 2016, Singh bought a new Honda Accord
from Hinshaw’s Honda in Auburn, Washington. The
Accord had two stickers. The first sticker listed the car’s
standard features and a Manufacturer’s Suggested Retail
Price (“MSRP”) of $28,670.00. 2
The other sticker listed a “dealer price” of $29,505.00, as
well as individual costs for three dealer add-ons: “3M,” “Pro
Pak,” and “New Car Detail & Dealer Prep” (“Dealer Prep”). 3
With the add-ons, the listed price of the car was $30,632.00.
2
We refer to this sticker as the “MSRP Sticker.”
3
We refer to this sticker as the “Dealer Addendum.”
SINGH V. AMERICAN HONDA FINANCE CORP. 7
Singh negotiated the price of his new Accord down to
$27,356.97, before taxes and fees. Singh did not know what
the add-ons were when he purchased the car, nor did anyone
8 SINGH V. AMERICAN HONDA FINANCE CORP.
at Hinshaw’s explain them to him. Singh nonetheless
thought he was paying for the add-ons because they were
listed on the Dealer Addendum and he was not given the
chance to decline them. To finance his purchase, Singh
obtained financing from AHFC.
Singh signed three documents when he purchased his
Accord: (1) a Purchase Order, (2) a Sales Contract, and (3) a
Retail Installment Sale Contract (“RISC”). Singh also
initialed a mandatory disclosure form. The Purchase Order
listed the base price of the car as $27,356.97—the price
Singh negotiated. Under the heading “ACCESSORIES,” it
stated, “sold w/ prep” and “pro pkg (muds, tray, locks).” The
Sales Contract listed the “Base Price of Vehicle and
Options” as $27,356.97. It did not list any items under the
“Dealer Added or Deleted Options” heading. The RISC
provided the terms of Singh’s financing agreement with
AHFC and listed the total vehicle price of the Accord,
including taxes, licensing, and other fees. The RISC did not
list any add-ons. Finally, on the “Mandatory Disclosure
Statement,” Singh declined additional services and
protections, including “Rock Guard Chip Protect.”
Singh brought this putative class action in Washington
state superior court. 4 Singh claimed that Hinshaw’s did not
provide him the three add-ons it promised on the Dealer
Addendum—3M, Pro Pak, and Dealer Prep—and, if he had
known what the add-ons were, he would have declined them
and paid a lower price for his Accord. Singh claimed that
the other Dealership Defendants engaged in similar unlawful
practices. Singh further alleged that AHFC profits from the
4
At the time, the suit also named Gursharan Laddi and Jasvi Kaur
as plaintiffs. Those plaintiffs withdrew when Singh amended his
complaint in federal court.
SINGH V. AMERICAN HONDA FINANCE CORP. 9
Dealership Defendants’ nondisclosures because the
nondisclosures lead to higher car prices, which lead to higher
interest payments to AHFC from financing agreements with
vehicle purchasers. Singh asserted four causes of action
against the Dealership Defendants and AHFC: (1) breach of
contract; (2) violation of the duty of good faith and fair
dealing; (3) negligent supervision; and (4) violation of the
Washington Consumer Protection Act (“WCPA”).
AHFC removed the case to federal court under CAFA.
Singh moved to remand, contending that either the home
state or the local controversy exception to CAFA barred the
exercise of federal subject-matter jurisdiction. The district
court rejected those arguments and denied Singh’s motion.
Singh then amended his complaint to assert a federal TILA
claim.
The Dealership Defendants moved for summary
judgment and the district court granted that motion. On
Singh’s breach of contract claim, the district court explained
that the contract between Singh and Hinshaw’s consisted of
“the Sales Contract . . . RISC . . . and possibly the Vehicle
Purchase Order”—the documents Singh had signed.
Because none of those documents mentions 3M, Pro Pak, or
Dealer Prep, the district court held that those add-ons were
not part of the bargain between Hinshaw’s and Singh and,
for that reason, Hinshaw’s did not breach its contract with
Singh even if it did not provide the add-ons. 5 The district
5
In the district court, Singh also contended that Hinshaw’s
committed a per se breach by violating Washington’s Auto Dealer’s
Practices Act. The district court rejected that theory, and Singh does not
raise it on appeal. Thus, that theory has been abandoned. See, e.g., Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
10 SINGH V. AMERICAN HONDA FINANCE CORP.
court granted summary judgment against Singh on his
WCPA claim because (1) Hinshaw’s did not violate
Washington’s Auto Dealer’s Practices Act 6 and (2) Singh
did not demonstrate injury insofar as he paid less than the
MSRP of the car. Finally, the district court granted summary
judgment against Singh on his TILA claim because the
contract did not include any add-ons and therefore their costs
did not need to be itemized in the RISC. 7
Separately, AHFC moved to dismiss Singh’s claims
against it under Federal Rule of Civil Procedure 12(b)(6).
As part of its motion, AHFC included a copy of the RISC.
Singh had not attached the RISC to his complaint, so he
objected to its consideration at the motion-to-dismiss stage.
But Singh’s response included ninety-one pages of
declarations and exhibits, which likewise were not attached
to his complaint. Because each party cited materials outside
the complaint, the district court converted AHFC’s motion
to dismiss into a motion for summary judgment and
“deferred consideration of the motion to allow Singh a
reasonable opportunity to present all material that would be
pertinent.”
6
Singh does not re-assert violations of this law as a basis for his
WCPA claim on appeal and has thus abandoned this theory. See, e.g.,
Smith, 194 F.3d at 1052.
7
Singh does not challenge the district court’s ruling on his TILA
claim. Any challenge on this ground has been abandoned. See, e.g.,
Smith, 194 F.3d at 1052. The district court also granted summary
judgment against Singh on his claims for breach of the duty of good faith
and fair dealing and negligent supervision. Singh does not challenge
those rulings on appeal. Any challenge to those rulings has been
abandoned. See, e.g., Smith, 194 F.3d at 1052.
SINGH V. AMERICAN HONDA FINANCE CORP. 11
After further discovery, Singh objected that he had not
received adequate time for discovery. The district court
declined to permit Singh more time because Singh had
propounded discovery requests on the defendants for two
months, he attached a slew of documents obtained in
discovery to his responses to the motions for summary
judgment, and he did not point to any facts that he lacked.
On the merits, the district court granted summary
judgment against Singh on his breach of contract claim
because Singh could not show that AHFC violated any
financing terms of the RISC, the only contract between
AHFC and Singh. 8 The district court granted summary
judgment for AHFC on Singh’s WCPA claim because
AHFC was not directly involved in the allegedly deceptive
practice of displaying the Dealer Addendum on vehicles. 9
Finally, the district court noted that Singh had abandoned his
TILA claim against AHFC, although he reserved the right to
seek reinstatement.
Singh filed timely notices of appeal. He contends that
the district court lacked subject-matter jurisdiction over this
action at the time of removal and therefore erred when it
denied his motion to remand. He asks that this case be
8
The district court also rejected Singh’s theories that AHFC
committed a breach of contract because (1) it was in a joint venture with
the Dealership Defendants and they committed a breach, or (2) because
AHFC violated Washington’s Auto Dealer’s Practices Act. Singh does
not challenge those rulings on appeal. Any challenge to those rulings
has been abandoned. See, e.g., Smith, 194 F.3d at 1052.
9
The district court also granted summary judgment against Singh
on his claims for breach of the duty of good faith and fair dealing and
negligent supervision. Singh does not challenge those rulings on appeal.
Any challenge to those rulings has been abandoned. See, e.g., Smith,
194 F.3d at 1052.
12 SINGH V. AMERICAN HONDA FINANCE CORP.
remanded to Washington state court. In the alternative,
Singh contends that the district court erred in granting
summary judgment to the defendants, or that it erred in
granting summary judgment without permitting him
sufficient discovery.
II
We review de novo whether the district court had
subject-matter jurisdiction. Chapman v. Deutsche Bank
Nat’l Tr. Co., 651 F.3d 1039, 1043 (9th Cir. 2011) (per
curiam). We review any factual findings relevant to
jurisdiction for clear error. Id.
We review de novo whether the district court properly
granted summary judgment to the Dealership Defendants
and AHFC. Hunt v. City of L.A., 638 F.3d 703, 709 (9th Cir.
2011). We review the district court’s denial of Singh’s
“request for a continuance of summary judgment pending
further discovery . . . for an abuse of discretion.” Michelman
v. Lincoln Nat. Life Ins. Co., 685 F.3d 887, 892 (9th Cir.
2012). We may affirm on “any ground supported by the
record.” Canyon Cty. v. Syngenta Seeds, Inc., 519 F.3d 969,
975 (9th Cir. 2008).
III
As an initial matter, the parties disagree whether the
district court had subject-matter jurisdiction to render a
decision on the merits. Singh contends that jurisdiction did
not exist at the time of removal because two CAFA
exceptions—the local controversy exception and home state
exception—barred the exercise of federal subject-matter
jurisdiction. The defendants contend that those exceptions
are inapplicable. They alternatively contend, relying on
Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996), and Retail
SINGH V. AMERICAN HONDA FINANCE CORP. 13
Property Trust v. United Board of Carpenters and Joiners of
America, 768 F.3d 938 (9th Cir. 2014), that this case should
not be remanded to state court—even if subject-matter
jurisdiction did not exist when AFHC removed the case—
because Singh voluntarily amended his complaint after he
was in federal court to assert a federal TILA claim, thereby
establishing federal-question jurisdiction. Singh, relying on
Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567
(2004), responds that jurisdiction must be determined as of
the time of removal.
To better understand the parties’ dispute and the relevant
law that frames our inquiry, we start with the Supreme
Court’s decision in Grubbs v. General Electric Credit
Corporation, 405 U.S. 699 (1972). In Grubbs, General
Electric Credit Corporation (“GECC”) sued Grubbs in state
court. Id. at 700. In response, Grubbs initiated a cross-
action against the United States government. Id. The
government removed the case to federal court. Id. GECC
did not object to removal, and the case was eventually tried.
Id. at 701. On appeal, the Court of Appeals raised the issue
of jurisdiction sua sponte and dismissed. Id. at 702. The
Supreme Court reversed. The Court explained that in
situations where a removed case is tried and decided on the
merits without objection, “the issue in subsequent
proceedings on appeal is not whether the case was properly
removed, but whether the federal district court would have
had original jurisdiction of the case had it been filed in that
court.” Id. at 703. Applying that principle, the Court held
that jurisdiction existed when the district court rendered its
judgment and, for that reason, the Court of Appeals should
not have dismissed the case. Id. at 704.
In the wake of Grubbs, we held that a party challenging
the propriety of removal had to preserve any such objection
14 SINGH V. AMERICAN HONDA FINANCE CORP.
by timely moving to remand and then appealing any adverse
remand determination. See, e.g., Gould v. Mut. Life Ins. Co.
of N.Y., 790 F.2d 769, 774 (9th Cir. 1986); Lewis v. Time,
Inc., 710 F.2d 549, 552 (9th Cir. 1983); Sheeran v. Gen.
Elec. Co., 593 F.2d 93, 97–98 (9th Cir. 1979). “[W]hen
there [was] no appeal of a denial of a remand motion and the
case [was] tried on the merits, the issue on appeal [was]
whether the federal court would have had jurisdiction had
the case been filed in federal court in the posture it had at the
time of the entry of the final judgment.” Lewis, 710 F.2d at
552; accord Carpenters Health & Welfare Tr. Fund for Cal.
v. Tri Capital Corp., 25 F.3d 849, 852 (9th Cir. 1994),
overruled on other grounds by S. Cal. IBEW-NECA Tr.
Funds v. Standard Indus. Elec. Co., 247 F.3d 920 (9th Cir.
2001). At least one other circuit applied a similar rule. See,
e.g., Kidd v. Sw. Airlines, Co., 891 F.2d 540, 546 (5th Cir.
1990).
Then came Caterpillar Inc. v. Lewis, 519 U.S. 61, the
case on which the defendants rely. The plaintiff there had
filed suit in state court on personal injury claims. Id. at 64.
“The case was removed to a federal court at a time when . . .
complete diversity of citizenship did not exist among the
parties.” Id. The plaintiff moved to remand the case, but the
district court denied the motion. Id. Before trial, the
nondiverse defendants settled, and at the time of trial,
complete diversity existed between the parties. Id. The
defendant prevailed at trial, but “[t]he Court of Appeals
vacated the judgment, concluding that, absent complete
diversity at the time of removal, the District Court lacked
subject-matter jurisdiction.” Id.
The Supreme Court reversed. The Court first held that
the plaintiff, “by timely moving for remand, did all that was
required to preserve his objection to removal.” Id. at 74. The
SINGH V. AMERICAN HONDA FINANCE CORP. 15
Court then explained that the flaw in the case was a
“statutory flaw—Caterpillar’s failure to meet the [28 U.S.C.]
§ 1441(a) requirement that the case be fit for federal
adjudication at the time the removal petition is filed”—not a
“jurisdictional defect.” Id. The jurisdictional defect, the
lack of complete diversity at the time of removal, was cured
when complete diversity was established before trial. Id. at
73. The Court noted that if the jurisdictional defect had
remained through the time when the judgment was entered,
however, the judgment would have to be vacated. Id. at 76–
77. But the Court concluded that the district court properly
exercised subject-matter jurisdiction notwithstanding the
initial statutory flaw. The Court explained: “Once a
diversity case has been tried in federal court, with rules of
decision supplied by state law under the regime of Erie R.
Co. v. Tompkins, 304 U.S. 64 (1938), considerations of
finality, efficiency, and economy become overwhelming.”
Id. at 75. It went on: “To wipe out the adjudication
postjudgment, and return to state court a case now satisfying
all federal jurisdictional requirements, would impose an
exorbitant cost on our dual court system, a cost incompatible
with the fair and unprotracted administration of justice.” Id.
at 77.
The Supreme Court revisited this line of authority in
Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567,
the case on which Singh relies. There, the parties were
nondiverse when the plaintiff filed its complaint in federal
court because the plaintiff was a partnership with “two
partners who were Mexican citizens,” 10 while the defendant
was a Mexican corporation. Id. at 569. Despite the initial
10
Partnerships are citizens of each state or foreign country of which
any partner is a citizen. See Carden v. Arkoma Assocs., 494 U.S. 185,
192–195 (1990).
16 SINGH V. AMERICAN HONDA FINANCE CORP.
lack of diversity, complete diversity was achieved just
before trial when the two Mexican partners left the
partnership. Id. The case proceeded to a six-day trial. Id.
The Supreme Court framed the question before it as
“whether a party’s post-filing change in citizenship can cure
a lack of subject-matter jurisdiction that existed at the time
of filing in an action premised upon diversity of citizenship.”
Id.
Answering that question negatively, the Court held that
federal subject-matter jurisdiction was lacking. Id. at 572–
76. The Court started with the proposition that “[i]t has long
been the case that ‘the jurisdiction of the court depends upon
the state of things at the time of the action brought.’” Id. at
570 (quoting Mollan v. Torrance, 9 Wheat. 537, 539 (1824)).
The Court then distinguished Caterpillar, explaining that
“Caterpillar broke no new ground,” the “jurisdictional
defect [there] had been cured by the dismissal of the party
that destroyed diversity”—a “method of curing a
jurisdictional defect [that] had long been an exception to the
time-of-filing rule.” Id. at 572. The Court further explained
that the “holding of Caterpillar . . . is only that a statutory
defect—‘Caterpillar’s failure to meet the § 1441(a)
requirement that the case be fit for federal adjudication at the
time the removal petition is filed’—did not require dismissal
once there was no longer any jurisdictional defect,” in light
of “considerations of finality, efficiency, and economy.” Id.
at 574 (quoting Caterpillar, 519 U.S. at 73, 75). Finally, the
Court noted that it had “never approved a deviation from the
rule . . . that where there is no change of party, a jurisdiction
depending on the condition of the party is governed by that
condition, as it was at the commencement of the suit.” Id.
(quotation, emphasis, and alteration omitted). Because the
“[t]he purported cure” to the jurisdictional defect in Grupo
Dataflux “arose not from a change in the parties to the action,
SINGH V. AMERICAN HONDA FINANCE CORP. 17
but from a change in the citizenship of a continuing party”—
a cure the Court had refused to permit “for the past
175 years”—the Court held that federal subject-matter
jurisdiction did not exist. Id. at 575–76.
Under Grubbs, Caterpillar, and Grupo Dataflux, our
inquiry is three-fold when, as here, it is alleged that federal
subject-matter jurisdiction did not exist at the time of
removal but existed at the time of final judgment. First, has
the party contesting jurisdiction preserved the contention
that removal was improper? Second, was there a
jurisdictional defect at the time of removal and, if so, was it
properly cured before the entry of final judgment so that
federal subject-matter jurisdiction existed at the time of final
judgment? Third, if no jurisdictional defect remained at the
time of final judgment, do “considerations of finality,
efficiency, and economy,” outweigh the statutory defect in
the case—a party’s “failure to meet the [28 U.S.C.]
§ 1441(a) requirement that the case be fit for federal
adjudication at the time the removal petition is filed”—such
that dismissal would be inconsistent “with the fair and
unprotracted administration of justice”? Caterpillar,
519 U.S. at 73, 75, 77. 11 We consider these questions in
turn.
11
At least two of our sister circuits apply a similar framework. See,
e.g., Camsoft Data Sys., Inc. v. S. Elecs. Supply, Inc., 756 F.3d 327, 333–
34 (5th Cir. 2014) (“So Caterpillar analysis involves three
considerations: first, whether a meritorious removal challenge has been
preserved; second, whether a post-removal development cured the defect
that existed at removal; and third, whether the case was tried on the
merits such that finality and economy preclude remand.”); Gentek Bldg.
Prod., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 327 (6th Cir. 2007).
And no circuit, so far as we can determine from our review of the cases,
has squarely held to the contrary.
18 SINGH V. AMERICAN HONDA FINANCE CORP.
A
Our first question is whether Singh preserved his
objection to removal. If not, then Grubbs controls and “the
issue . . . on appeal is not whether the case was properly
removed, but whether the federal district court would have
had original jurisdiction of the case had it been filed” in
federal court at the time of final judgment. 405 U.S. at 703.
In Caterpillar, the Supreme Court held that a party
preserves a challenge to removal by timely moving to
remand. 519 U.S. at 74; see also Camsoft Data Sys., Inc.,
756 F.3d at 333–34 (relying on Caterpillar to hold that a
party preserved its objection to removal by timely moving to
remand). A party need not do more. 12 Here, Singh timely
moved to remand this case to Washington state court after
removal. Doing so preserved his objection that removal was
improper.
The defendants nonetheless contend that Singh “waived
any ability to challenge removal.” They rely on our decision
in Retail Property Trust, 768 F.3d 938. We held there that
“[t]he question whether the district court erred in denying”
the plaintiff’s motion to remand was moot because the
plaintiff’s “assertion of federal jurisdiction in the [second
amended complaint] conferred jurisdiction upon the district
court and hence upon us.” Id. at 949 n.6. Contrary to the
defendants’ assertion, Retail Property Trust did not rest on
waiver grounds. Instead, we applied the rule, discussed
below, that when a plaintiff voluntarily asserts a federal
12
Caterpillar effectively overruled our decisions that required a
plaintiff to immediately appeal an adverse determination on a motion to
remand to preserve the issue for appeal. See, e.g., Gould, 790 F.2d
at 774; Lewis, 710 F.2d at 552; Sheeran, 593 F.2d at 97–98.
SINGH V. AMERICAN HONDA FINANCE CORP. 19
claim after removal, doing so establishes federal subject-
matter jurisdiction and cures any jurisdictional defect that
may exist in the case. This is clear from our citations to cases
applying that rule: Moffitt v. Residential Funding Co., LLC,
604 F.3d 156, 159 (4th Cir. 2010), Barbara v. N.Y. Stock
Exch., Inc., 99 F.3d 49, 56 (2d Cir. 1996), abrogated on
other grounds by Merrill Lynch, Pierce, Fenner & Smith Inc.
v. Manning, 136 S. Ct. 1562 (2016), and Bernstein v. Lind–
Waldock & Co., 738 F.2d 179, 185 (7th Cir. 1984).
B
Our second question is whether this case had a
jurisdictional defect at the time of removal and, if so,
whether that defect was cured by proper means before the
entry of final judgment.
Certain acts properly cure jurisdictional defects. For
example, in Caterpillar, the jurisdictional defect—lack of
complete diversity—was cured when the nondiverse party
was dismissed, a “method of curing a jurisdictional defect
[that] had long been” accepted. Grupo Dataflux, 541 U.S. at
572. Others do not. The jurisdictional defect in Grupo
Dataflux—lack of complete diversity—was not cured
because a party’s citizenship in a federal action is
determined as of the time of filing and later changes to that
citizenship cannot create or destroy diversity. See id. at 575–
76. “[I]f, at the end of the day and case, a jurisdictional
defect remains uncured, the judgment must be vacated.”
Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d
728, 736 (9th Cir. 2011) (emphasis omitted) (quoting
Caterpillar, 519 U.S. at 76–77); see also Rodas v. Seidlin,
656 F.3d 610, 616 (7th Cir. 2011) (explaining that Grubbs
and Caterpillar “do not apply to jurisdictional defects”).
20 SINGH V. AMERICAN HONDA FINANCE CORP.
Here, we hold that the district court lacked jurisdiction at
the time of removal, but it had jurisdiction at the time of
summary judgment because the defect was properly cured.
We explain each point in turn. 13
1
AHFC removed this action from state court under
CAFA. 14 Under CAFA, a district court has original
jurisdiction over a class action where: “(1) there are one-
hundred or more putative class members; (2) at least one
class member is a citizen of a state different from the state of
any defendant; and (3) the aggregated amount in controversy
exceeds $5 million, exclusive of costs and interest.”
Washington v. Chimei Innolux Corp., 659 F.3d 842, 847 (9th
Cir. 2011) (citing 28 U.S.C. § 1332(d)(2), (5)(B), (6)).
Congress enacted CAFA to “curb perceived abuses of the
class action device which, in the view of CAFA’s
proponents, had often been used to litigate multi-state or
13
We note that a court need not analyze whether jurisdiction existed
at the time of removal under the framework we have set out. It may
simply assume that jurisdiction did not lie and then consider whether any
jurisdictional defect was cured. We consider whether jurisdiction
existed at the time of removal here because this case implicates CAFA’s
home state exception, and in particular the meaning of the term “primary
defendants.” We have previously declined to address the meaning of
that term, see Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1024–25 (9th
Cir. 2007), so we find it appropriate to address the issue here. It has been
fully briefed and we have a sufficient record. Moreover, if jurisdiction
existed at the time of removal, that would necessarily end our inquiry.
14
“A defendant generally may remove a civil action if a federal
district court would have original jurisdiction over the action.” Allen v.
Boeing Co., 784 F.3d 625, 628 (9th Cir. 2015) (citing 28 U.S.C.
§ 1441(a)).
SINGH V. AMERICAN HONDA FINANCE CORP. 21
even national class actions in state courts.” United Steel v.
Shell Oil Co., 602 F.3d 1087, 1090 (9th Cir. 2010) (quoting
Tanoh v. Dow Chem. Co., 561 F.3d 945, 952 (9th Cir.
2009)).
CAFA “contains several exceptions to its grant of
removal jurisdiction . . . .” Bridewell-Sledge v. Blue Cross
of Cal., 798 F.3d 923, 928 (9th Cir. 2015). Relevant here is
the so-called “home state” exception, 15 which provides that
a “district court shall decline to exercise jurisdiction” over a
class in which “two-thirds or more of the members of all
proposed plaintiff classes in the aggregate, and the primary
defendants, are citizens of the State in which the action was
originally filed.” 28 U.S.C. § 1332(d)(4)(B). It is Singh’s
burden to show that the exception applies, Mondragon v.
Capital One Auto Fin., 736 F.3d 880, 883 (9th Cir. 2013),
because “CAFA should be read with a strong preference that
interstate class actions should be heard in a federal court if
properly removed by any defendant,” Bridewell-Sledge,
798 F.3d at 929 (quotation omitted). The parties contest
only whether AHFC is a “primary defendant,” which would
render the home state exception inapplicable; they otherwise
agree that the other requirements are satisfied.
CAFA “does not define ‘primary defendant.’” 2 William
B. Rubenstein, Newberg on Class Actions § 6:20 (5th ed.
2018 update). Courts have thus looked to “numerous
factors” to define the term. Id.
15
Singh also invokes the so-called “local controversy” exception.
See 28 U.S.C. § 1332(d)(4). Because we conclude that the home state
exception applies, we do not consider the local controversy exception.
22 SINGH V. AMERICAN HONDA FINANCE CORP.
The Third Circuit, synthesizing various decisions and
relying heavily on CAFA’s legislative history, has explained
that
courts tasked with determining whether a
defendant is a “primary defendant” under
CAFA should assume liability will be found
and determine whether the defendant is the
“real target” of the plaintiffs’ accusations. In
doing so, they should also determine if the
plaintiffs seek to hold the defendant
responsible for its own actions, as opposed to
seeking to have it pay for the actions of
others. Also, courts should ask whether,
given the claims asserted against the
defendant, it has potential exposure to a
significant portion of the class and would
sustain a substantial loss as compared to other
defendants if found liable.
Vodenichar v. Halcon Energy Props., Inc., 733 F.3d 497,
505–06 (3d Cir. 2013). Applying those principles, the Third
Circuit held in Vodenichar that a defendant was a “primary
defendant” because it was alleged to be directly liable to the
plaintiffs and liability was apportioned “equally among the
defendants.” Id. at 506; see also Hunter v. City of
Montgomery, 859 F.3d 1329, 1337 (11th Cir. 2017) (relying
on Vodenichar to hold that a city was a “primary defendant,”
but a private company was not, because the private company
could only be vicariously or secondarily liable).
The Fifth Circuit considered the “primary defendant”
requirement in Hollinger v. Home State Mutual Insurance
Co., 654 F.3d 564 (5th Cir. 2011). There, one group of
defendants, the “County Mutuals,” allegedly issued
SINGH V. AMERICAN HONDA FINANCE CORP. 23
insurance policies in violation of the Texas Insurance Code.
Id. at 568. The other group of defendants, the “Reinsurers,”
allegedly “participated in and permitted such violations.” Id.
The Fifth Circuit held that the “County Mutuals” were “the
primary defendants, because all putative class members, by
definition, have claims against the County Mutuals, and as
the entities that issued the insurance policies, the County
Mutuals have a primary role in the alleged discrimination.”
Id. at 572.
The Fifth Circuit revisited the “primary defendant”
requirement in Watson v. City of Allen, holding that the
Texas legislature and local municipalities were “primary
defendants” because those legislative bodies had enacted the
“legislative scheme” that the suit sought to declare
unconstitutional. 821 F.3d 634, 641 (5th Cir. 2016). By
contrast, the Fifth Circuit held that three private companies
were not “primary defendants” because the claims against
them were “expressly contingent on a threshold finding that
the challenged legislative scheme [was] unconstitutional.”
Id.
Aligning ourselves with our sister circuits, we hold that
a court analyzing whether a defendant is a “primary
defendant” for purposes of CAFA’s home state exception
should first assume that all defendants will be found liable.
The court should then consider whether the defendant is sued
directly or alleged to be directly responsible for the harm to
the proposed class or classes, as opposed to being vicariously
or secondarily liable. The court should also consider the
defendant’s potential exposure to the class relative to the
exposure of other defendants. Courts should not treat these
considerations as exhaustive or apply them mechanistically.
The inquiry is whether a defendant is a “‘principal,’
‘fundamental,’ or ‘direct’” defendant. Vodenichar, 733 F.3d
24 SINGH V. AMERICAN HONDA FINANCE CORP.
at 504 (relying on Merriam-Webster’s Collegiate Dictionary
923 (10th ed. 2002) to define “primary”). Finally, we agree
that “by using the word ‘the’ before the words ‘primary
defendants’ rather than the word ‘a,’ [CAFA] requires
remand under the home state exception only if all primary
defendants are citizens of” the alleged home state. Id. at 506;
see also Rubenstein, Newberg on Class Actions § 6:20
(“Most courts agree that the use of the definite article in ‘the
primary defendants’ requires that all of the primary
defendants be citizens of the state in which the action was
originally filed.”). It is insufficient that only some of the
primary defendants are citizens of that state.
With these principles in mind, we turn to the allegations
in this case. The operative complaint at the time of removal
named (1) AHFC, (2) Soraya Motor Co., (3) Arianna Motor
Company, Inc., and (4) Hooman H. Bodaghi, d/b/a
Hinshaw’s Honda, Green River Leasing, Honda of Auburn,
Hooman Honda, Hooman Motors Group, Paul Hinshaw
Acura, and Hooman Acura, as defendants. Singh described
the “Defendants” as “auto dealers and manufacturers doing
business in King County, Washington.” Singh alleged that
Hooman Bodaghi either owned or was the alter ego of each
of the named dealerships. He further claimed that
“Defendants” unlawfully charge customers for vehicle add-
ons that they do not include and which cannot be declined.
Singh alleged that AHFC “provides the financing for
vehicles sold or leased by Defendants to the Plaintiffs” and
“knows or should know that all of the customers are misled
and improperly charged.” AHFC allegedly “profit[s] from
the misconduct of the other Defendants” by receiving
additional interest under financing agreements with vehicle
purchasers. Each cause of action is asserted against all
defendants.
SINGH V. AMERICAN HONDA FINANCE CORP. 25
Contrary to the district court’s determination, we hold
that the foregoing allegations show that the Dealership
Defendants are the primary defendants and AHFC is a
secondary defendant. The Dealership Defendants—all of
whom are allegedly controlled in some manner by Hooman
Bodaghi—are allegedly responsible for the direct harm to
consumers: improperly charging for vehicle add-ons.
AHFC’s alleged liability stems from permitting this conduct
and benefitting from it in the form of additional interest
payments. In other words, AHFC’s liability depends on a
“threshold finding” that the Dealership Defendants acted
unlawfully, demonstrating that AHFC is a secondary
defendant. See Watson, 821 F.3d at 641. Moreover, it
appears that the Dealership Defendants have more exposure
to the class because the alleged benefit to AHFC is interest
charged on improper add-ons, whereas the alleged benefit to
the Dealership Defendants is the full cost of the add-ons. See
Vodenichar, 733 F.3d at 505–06.
In holding that AHFC is a primary defendant, the district
court explained in part that AHFC would be directly liable
to the class for all claims because each claim in the complaint
was asserted against “Defendants,” without differentiating
between them. It was not enough, however, for the district
court to look only at what claims were asserted against which
defendants. Although doing so can help determine whether
a defendant is directly or secondarily liable to the class and
the relative exposure among defendants, a mechanical
review of how many claims are asserted against a defendant
is inappropriate. Here, although Singh asserts each cause of
action against all defendants, Singh’s description of the
parties shows that AHFC benefits from the alleged
misconduct of the Dealership Defendants and is, in that
sense, a secondary defendant.
26 SINGH V. AMERICAN HONDA FINANCE CORP.
The district court also found that AHFC was a primary
defendant because it “has the most resources by which to
‘satisfy a potential judgment.’” We disagree that AHFC’s
ability to satisfy a potential judgment was a relevant
consideration here. 16 Nothing in the record indicates that the
Dealership Defendants would be unable to satisfy any
judgment rendered against them.
Because the Dealership Defendants, the primary
defendants, and “two-thirds or more of the members of all
proposed plaintiff classes in the aggregate . . . are citizens
of” Washington State, the home state exception applies.
28 U.S.C. § 1332(d)(4)(B). The district court did not have
subject-matter jurisdiction over this action at the time of
removal.
2
Our inquiry into jurisdiction is not at an end, however.
After the district court denied Singh’s motion to remand,
Singh voluntarily amended his complaint to assert a federal
TILA claim.
We have previously held that when a plaintiff voluntarily
amends his or her complaint after removal to assert a federal
claim, that amendment cures any jurisdictional defect and
establishes federal subject-matter jurisdiction. See Retail
Prop. Tr., 768 F.3d at 949 n.6 (holding that “[t]he question
whether the district court erred in denying” the plaintiff’s
motion to remand was moot because the plaintiff’s
“assertion of federal jurisdiction in the [second amended
complaint] conferred jurisdiction upon the district court and
16
We express no view on whether this is a relevant consideration in
a future case.
SINGH V. AMERICAN HONDA FINANCE CORP. 27
hence upon us”); Chabner v. United of Omaha Life Ins. Co.,
225 F.3d 1042, 1046 n.3 (9th Cir. 2000) (“Once in federal
court, Chabner amended his complaint to add a claim under
the ADA, thereby raising a federal question. . . . [B]ecause
the ADA claim raised a federal question, subject matter
jurisdiction existed at the time the district court entered
judgement [sic]. Therefore, this case was properly in federal
court.”). So too have other courts. See Pegram v. Herdrich,
530 U.S. 211, 215 n.2 (2000) (“Herdrich does not contest the
propriety of removal before us, and we take no position on
whether or not the case was properly removed . . . .
Herdrich’s amended complaint alleged ERISA violations,
over which the federal courts have jurisdiction, and we
therefore have jurisdiction regardless of the correctness of
the removal.”); Moffitt, 604 F.3d at 159; Cotton v. Mass.
Mut. Life Ins. Co., 402 F.3d 1267, 1280 (11th Cir. 2005);
Barbara, 99 F.3d at 55–56; Bernstein, 738 F.2d at 185.
Our previous holdings are dispositive here. By
voluntarily amending his complaint to assert a federal claim,
Singh established federal subject-matter jurisdiction and
cured any jurisdictional defect that existed at the time of
removal. 17
17
If Singh had involuntarily amended his complaint, then the case
may be different. See O’Hallaran v. Univ. of Wash., 856 F.2d 1375,
1380 (9th Cir. 1988). But there is no evidence of coercion here. The
case would also be different if Singh had tried to amend his complaint to
eliminate federal subject-matter jurisdiction. See Broadway Grill, Inc.
v. Visa Inc., 856 F.3d 1274, 1277 (9th Cir. 2017). Singh relies on
Broadway Grill, and similar cases, to contend that jurisdiction must be
determined as of the time of removal, but they are inapposite because
they concern attempts to amend to avoid or eliminate federal subject-
matter jurisdiction. See Chabner, 225 F.3d at 1046 n.3 (“Although
normally jurisdiction must be analyzed on the basis of the pleadings filed
28 SINGH V. AMERICAN HONDA FINANCE CORP.
Singh contends that it does not matter that he amended
his complaint to assert a TILA claim because he abandoned
his TILA claim before summary judgment. Singh
misconstrues the record. Even if Singh abandoned his TILA
claim against AHFC, Singh did not abandon his TILA claim
against the Dealership Defendants. The district court
expressly ruled on that claim in its summary-judgment
decision. The district court had jurisdiction under 28 U.S.C.
§ 1331 to adjudicate Singh’s TILA claim against the
Dealership Defendants, and it had supplemental jurisdiction
under 28 U.S.C. § 1367(a) to adjudicate Singh’s claims
against AHFC. See Shell Offshore, Inc. v. Greenpeace, Inc.,
709 F.3d 1281, 1288 (9th Cir. 2013) (supplemental
jurisdiction proper under 28 U.S.C. § 1367(a) where claims
arise from a “common nucleus of operative facts”).
C
“[A] statutory flaw—[AHFC’s] failure to meet the
[28 U.S.C.] § 1441(a) requirement that the case be fit for
federal adjudication at the time the removal petition is
filed”—nonetheless “remain[s] in the unerasable history of
the case.” Caterpillar, 519 U.S. at 73. We thus address
whether “considerations of finality, efficiency, and
economy” outweigh the statutory defect such that dismissing
this case now and remanding it to state court would be
inconsistent “with the fair and unprotracted administration
of justice.” Caterpillar, 519 U.S. at 75, 77.
at the time of removal without reference to subsequent amendments, that
rule applies mainly in cases where the amended complaint attempts to
destroy federal jurisdiction after the case has been properly removed.”
(quotation omitted)).
SINGH V. AMERICAN HONDA FINANCE CORP. 29
Our decisions suggest that “considerations of finality,
efficiency, and economy” may be insufficient when there is
no final judgment on the merits. See Abada v. Charles
Schwab & Co., 300 F.3d 1112, 1114–17 (9th Cir. 2002); see
also McAteer v. Silverleaf Resorts, Inc., 514 F.3d 411, 416
(5th Cir. 2008). They also suggest that those considerations
may be insufficient “where the judgment reached by the trial
court must be reversed on the merits and the case remanded
to the trial court for further proceedings.” Prize Frize, Inc.
v. Matrix (U.S.) Inc., 167 F.3d 1261, 1266 (9th Cir. 1999);
see also Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d
1072, 1080 (10th Cir. 1999).
But here, the district court resolved a number of
Washington state law issues on the merits, “with rules of
decision supplied by state law under the regime of Erie R.
Co. v. Tompkins, 304 U.S. 64, (1938).” Caterpillar,
519 U.S. at 75; see also Lively v. Wild Oats Markets, Inc.,
456 F.3d 933, 941 n.11 (9th Cir. 2006) (holding that
summary-judgment decision is decision on the merits);
Gould, 790 F.2d at 773 (holding the same). Moreover, as
explained below, we affirm the district court’s decision on
the merits. “[C]onsiderations of finality, efficiency, and
economy” counsel against dismissing this action.
Caterpillar, 519 U.S. at 75. “To wipe out the adjudication
postjudgment, and return to state court a case now satisfying
all federal jurisdictional requirements, would impose an
exorbitant cost on our dual court system, a cost incompatible
with the fair and unprotracted administration of justice.” Id.
at 77. We decline to impose such a cost.
***
The district court lacked subject-matter jurisdiction over
this case at the time of removal. But the district court had
jurisdiction at the time of final judgment because Singh
30 SINGH V. AMERICAN HONDA FINANCE CORP.
asserted a TILA claim after removal. Because the district
court resolved all of Singh’s claims on the merits,
“considerations of finality, efficiency, and economy”
counsel against dismissing this case now and remanding it to
Washington state court. We therefore proceed to the merits
of Singh’s appeal.
IV
On the merits, Singh contends that the district court erred
by granting summary judgment to the Dealership
Defendants and AHFC on his breach of contract and WCPA
claims. We “must determine whether, viewing the evidence
in the light most favorable to [Singh], any genuine issues of
material fact exist, and whether the district court correctly
applied the relevant substantive law.” Hunt, 638 F.3d at 709
(quoting Fazio v. City & Cty. of S.F., 125 F.3d 1328, 1331
(9th Cir. 1997)). Summary judgment is appropriate if the
evidence is such that no reasonable jury could return a
verdict for Singh. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
A
We first consider Singh’s claims against the Dealership
Defendants.
1
To prevail on his breach of contract claim, Singh must
show an agreement between himself and the Dealership
Defendants, a duty under the agreement, and a breach of that
duty. Fid. & Deposit Co. of Md. v. Dally, 201 P.3d 1040,
1044 (Wash. Ct. App. 2009). In interpreting contracts,
Washington “follow[s] the objective manifestation theory of
contracts.” Hearst Commc’ns, Inc. v. Seattle Times Co.,
SINGH V. AMERICAN HONDA FINANCE CORP. 31
115 P.3d 262, 267 (Wash. 2005). Courts are “to determine
the parties’ intent by focusing on the objective
manifestations of the agreement, rather than on the
unexpressed subjective intent of the parties.” Id. Words in
a contract are to be given “their ordinary, usual, and popular
meaning unless the entirety of the agreement clearly
demonstrates a contrary intent.” Id. “[S]urrounding
circumstances and other extrinsic evidence”—parol
evidence—may be used “to determine the meaning of
specific words and terms used” in the contract, but not to
“show an intention independent of the instrument” or to
“vary, contradict or modify the written word.” Id. (emphasis
omitted) (quoting Hollis v. Garwall, 974 P.2d 836, 843
(Wash. 1999)).
As explained, Singh signed three documents when he
purchased his Accord: (1) a Purchase Order, (2) a Sales
Contract, and (3) an RISC. None of these documents
describes the features of the Accord Singh purchased; they
instead give the stock number, year, make, model, and VIN
of the Accord. Singh contends that we must consider parol
evidence to determine the features of the Accord he was
promised. Relying on extrinsic evidence—and in particular,
the Dealer Addendum—Singh contends that Hinshaw’s was
contractually obligated to provide him the three add-ons
listed on the addendum: 3M, Pro-Pak, and Dealer Prep.
Singh contends that Hinshaw’s breached its agreement when
it did not include All-Season Floor Mats, which were
purportedly included with Pro Pak, or 3M with his Accord.
Assuming without deciding that Singh is correct that we
must consider extrinsic evidence to determine the features of
the Accord he was promised, Hinshaw’s did not breach its
contract with Singh. Considering all the extrinsic evidence
offered, Singh has not demonstrated a genuine issue of
32 SINGH V. AMERICAN HONDA FINANCE CORP.
material fact as to whether he was promised an add-on that
he did not receive.
Turning first to whether Singh was promised and
provided “3M,” the Dealership Defendants’ witnesses
uniformly testified that “3M” refers to “door edge guards,
which [are installed] on most new cars prior to them being
placed on the lot.” 18 On that understanding of the term,
18
Singh excerpts Tim Lasso’s deposition to contend that witnesses
used “3M” to describe a clear coat on the hood of a car. However, the
full excerpt of that testimony shows that Lasso was referring to “3M Full
Kit,” a different add-on:
Q. What’s a chip guard?
A. It’s a plastic nose protectant for the car. Clear
plastic that’s glued on the front third of the car.
Q. Is it the same as 3M protection?
A. Yeah.
Q. Is it the same as the 3M Clear Bra?
A. Yes.
Q. So it goes by the name of Chip Guard?
A. Well, I guess you can – no, it goes by the name of
3M Full Kit, what we use internally. But also can go
by Rock Guard or chip protectant. You can use really
any term you’d like.
Lasso confirmed this understanding later in his deposition by
describing “3M Full Kit” as different than “door edge guards.”
SINGH V. AMERICAN HONDA FINANCE CORP. 33
Singh has not shown a breach of contract because he does
not claim that he was not provided door edge guards.
However, Singh offered the declaration of Ron Kayshel
that “[b]ased on [his] understanding while [he] was
employed at Hinshaw’s Honda, 3M was a clear film that
could be sprayed over the front hood of a car to protect its
finish.” 19 Assuming that the declaration is sufficient to
create a genuine dispute of fact as to the meaning of “3M,”
Singh still has not established a breach of contract. If “3M”
refers to “a clear film that could be sprayed over the front
hood of a car to protect its finish,” then Singh explicitly
declined that add-on when he initialed the Mandatory
Disclosure Statement and declined “Rock Guard Chip
Protect.” The Mandatory Disclosure Statement explains that
Rock Guard Chip Protect “[s]hields paint from any rock
chips/bug damage,” and witnesses uniformly testified that
Rock Guard Chip Protect—which they also referred to as
“3M Full Kit”—is a “clear bra that covers the front third of
a vehicle.” In other words, Rock Guard Chip Protect is
“3M,” as Kayshel uses that term. Singh explicitly declined
that add-on. He cannot assert breach of contract for
something that was not part of the bargain.
If Singh had agreed to purchase “a clear film that could
be sprayed over the front hood of a car to protect its finish,”
a charge of $999 for “3M Full Kit” would have appeared on
his Sales Contract under the heading for “Dealer Added or
Deleted Options,” as evidenced by the sales contracts of two
19
Singh also offered the declaration of Lewis Linet, Jr. (his expert).
Linet, Jr. opined that “a very popular type of 3M is protection for a car
hood.” The declaration does not explain how Hinshaw’s used the term
“3M,” however.
34 SINGH V. AMERICAN HONDA FINANCE CORP.
former named plaintiffs in this case. 20 Singh’s Sales
Contract does not include a charge for “3M Full Kit,”
confirming that he did not purchase it.
Turning to whether Singh was promised and provided
“Pro Pak,” witnesses uniformly testified that “Pro Pak”
refers to “mud flaps, trunk tray, and wheel locks.” This
understanding is confirmed by Singh’s Vehicle Purchase
Order, which under the heading “ACCESSORIES,” states,
“pro pkg (muds, tray, locks).” Singh admits that his car
came with these items. And an internal invoice, as well as a
“New Vehicle Inventory” sheet, confirms the same.
To survive summary judgment, Singh contends that “Pro
Pak” also includes All-Season Floor Mats, which he never
received. He relies on an “accessories list” for the Accord,
which lists a number of potential add-ons for various cars.
The list does not support Singh’s contention. The list details
four different “protection packages” for the Accord. It lists
a “Protection Package,” which is undefined, for $453.90. It
lists an “All-Season Protection Package,” which is defined
to include a “splash-guard set,” “all-season floor mats,” and
“a trunk tray,” for $549.60. It lists an “All-Season Protection
Package I,” which is defined to include a “splash-guard set,”
“all-season floor mats,” and “wheel locks,” for $458.30.
And it lists an “All-Season Protection Package II,” which is
defined to include “all-season floor mats,” “a trunk tray,”
and “wheel locks,” for $549.60. None of these options
include all four of the items Singh alleges he was promised:
mud flaps, a trunk tray, wheel locks, and All-Season Floor
Mats. Nor does Singh explain which of the various
20
One of the Dealership Defendants’ witnesses confirmed that when
a customer purchases “3M Full Kit,” or “Rock Guard,” Hinshaw’s fills
in the “Dealer Added or Deleted Options” section on the Sales Contract.
SINGH V. AMERICAN HONDA FINANCE CORP. 35
protection package options he was allegedly promised. He
instead pulls products from each. Doing so is insufficient to
create a genuine dispute of material fact as to the meaning of
“Pro Pak” in light of uniform testimony that it includes “mud
flaps, trunk tray, and wheel locks,” and in light of the
notation on Singh’s Vehicle Purchase Order stating “pro pkg
(muds, tray, locks).”
The “accessories list” also cuts against Singh’s
argument. Although the “Protection Package” for the
Accord is undefined, the “Protection Package” for the Civic
includes “wheel locks,” “trunk tray,” and “splash guard
set”—i.e., the items Singh received. The Civic also has an
“All-Season Protection Package” and “All-Season
Protection Package II” that mirror those of the Accord,
suggesting that the available packages are the same across
cars. The “Protection Package” for the CR-V likewise
includes “wheel locks,” “trunk tray,” and “splash guard set,”
as does the “Protection Package” for the CR-T, Pilot, HR-V,
and Odyssey. Given the items included in the “Protection
Packages” for other Hondas, the reasonable inference is that
the “Protection Package” for the Accord includes “wheel
locks,” a “trunk tray,” and a “splash guard set”—the
accessories Singh received. Singh has not pointed to any
evidence that he was promised All-Season Floor Mats.
Finally, as to Dealer Prep, the Dealership Defendants’
witnesses testified that the dealerships generally clean a car
when the car arrives on the lot. The dealerships also “clean
and detail that car again prior to delivery [to customers].
And [they] put a fee for that on the” Dealer Addendum—
“Dealer Prep.” Singh’s Vehicle Purchase Order states it was
“sold w/ prep,” and an internal Hinshaw’s invoice and “New
Vehicle Inventory” sheet reflect the time spent cleaning his
car.
36 SINGH V. AMERICAN HONDA FINANCE CORP.
Singh contends that, in charging him for “Dealer Prep,”
Hinshaw’s improperly charged Singh twice for cleaning
because the cost of cleaning is allegedly included in the
MSRP of a car. How this allegation relates to his theories of
liability, however, is unclear. In any event, it is unsupported
by the record. First, as explained, “Dealer Prep” refers to an
additional cleaning after a car has been cleaned once and has
been sitting on the lot, but before it is delivered to a
customer. Singh was not charged twice for one cleaning.
Second, Singh has not presented sufficient evidence to create
a dispute of fact as to whether the MSRP of his Accord
included the cost of cleaning. Singh’s expert, Lewis Linet,
Jr., surmised that, because the MSRP Sticker states that the
“Total Vehicle Price (Includes Pre-Delivery Service),” and
based on his experience, Hinshaw’s double-charged Singh
and other customers for preparing cars for delivery. But
there is no evidence to show that “Pre-Delivery Service”
refers to cleaning, or to the same cleaning as “Dealer Prep.”
Singh was promised that his car would be cleaned before it
was delivered, and it was. Singh has not shown a breach of
contract on this point.
Because Singh has adduced no evidence that he was
promised something he did not receive, the district court
correctly granted summary judgment to the Dealership
Defendants on Singh’s breach of contract claim.
2
To prevail on his WCPA claim, Singh “must establish
five distinct elements: (1) [an] unfair or deceptive act or
practice; (2) occurring in trade or commerce; (3) public
interest impact; (4) injury to [Singh] in his . . . business or
property; (5) [and] causation.” Hangman Ridge Training
Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 533
(Wash. 1986). The first two elements “may be established
SINGH V. AMERICAN HONDA FINANCE CORP. 37
by a showing that the alleged act constitutes a per se unfair
trade practice. A per se unfair trade practice exists when a
statute which has been declared by the Legislature to
constitute an unfair or deceptive act in trade or commerce
has been violated.” Id. at 535.
Singh contends that the Dealer Addendum was
misleading in violation of Washington Revised Code
§ 46.70.180(1), 21 establishing a per se violation of the
WCPA. Specifically, he contends that the Dealer Addendum
falsely promised him an Accord with Pro Pak, 3M, and
Dealer Prep, but he did not receive those add-ons. In other
words, Singh effectively repackages his breach of contract
claim as a WCPA claim. 22 Because, as we have explained,
Singh has adduced no evidence that he was promised
something he did not receive, no reasonable jury could
conclude that the Dealership Defendants violated the
WCPA. The district court correctly granted summary
21
That statute prohibits car dealerships from advertising or
disseminating “any statement or representation with regard to the sale,
lease, or financing of a vehicle which is false, deceptive, or misleading
. . . .” Wash. Rev. Code § 46.70.180(1).
22
Singh does not contend that the Dealer Addendum was misleading
insofar as the terms were not clearly defined. In his reply brief, he
suggests that “the fact that Defendants use multiple names for the same
products is misleading, deceptive, and/or unfair,” but he cites no
authority for this proposition, nor does he offer any analysis beyond this
unsupported conclusion. Such limited analysis does not adequately raise
the issue on appeal. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir.
1994) (“We will not manufacture arguments for an appellant, and a bare
assertion does not preserve a claim, particularly when, as here, a host of
other issues are presented for review.”); Miller v. Fairchild Indus., Inc.,
797 F.2d 727, 738 (9th Cir. 1986) (issues raised for first time in reply
brief generally not addressed). Nor does Singh contend that the alleged
“double charging” for Dealer Prep is a deceptive practice.
38 SINGH V. AMERICAN HONDA FINANCE CORP.
judgment to the Dealership Defendants on Singh’s WCPA
claim.
B
As to Singh’s claims against AHFC, AHFC’s asserted
liability is predicated on the theory that AHFC was either
aware of or had a role in the Dealership Defendants’
unlawful conduct—their alleged breach of contract or
violations of the WCPA. Because the Dealership
Defendants neither committed a breach of contract nor
violated the WCPA, Singh’s claims against AHFC fail. The
district court correctly granted summary judgment to AHFC.
Singh contends that AHFC may be “liable under TILA”
because it participated in the “Dealership Defendants’
scams.” But Singh abandoned his TILA claim against
AHFC in the district court; it is not before us on appeal. See
United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir.
1990). 23
V
Finally, we consider Singh’s challenges to the district
court’s decision to convert AHFC’s motion to dismiss into a
motion for summary judgment. Singh first contends that the
district court incorrectly believed that he did not oppose the
conversion. That contention is irrelevant. The district court
correctly converted AHFC’s motion into one for summary
23
As part of his argument that the district court improperly granted
summary judgment to AHFC, Singh contends that the district court erred
by striking portions of one of his response briefs. In light of Singh’s
extensive use of footnotes, the district court was well within its discretion
to strike three pages from his brief. See King Cty. v. Rasmussen,
299 F.3d 1077, 1082–83 (9th Cir. 2002).
SINGH V. AMERICAN HONDA FINANCE CORP. 39
judgment when the parties cited materials extrinsic to the
complaint, and the district court provided Singh notice and
an opportunity to respond. The district court committed no
error on this point. See Fed. R. Civ. P. 12(d) (“If, on a
motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under
Rule 56.”); Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.
1994) (“[T]he general rule in this circuit, as in others, is that
a district court may not grant a motion to dismiss which has
been converted into a summary judgment motion without
furnishing all parties an opportunity to supplement the
record . . . .”).
Singh next contends that he was provided inadequate
time for discovery. Under Federal Rule of Civil Procedure
56(d), “[i]f a nonmovant” to a motion for summary judgment
“shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition, the
court may: (1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.” “The
denial of a request for a continuance of summary judgment
pending further discovery is reviewed for an abuse of
discretion. A district court abuses its discretion only if the
party requesting a continuance can show that allowing
additional discovery would have precluded summary
judgment.” Michelman, 685 F.3d at 892.
Here, Singh relied on hundreds of pages of declarations,
deposition transcripts, and admissions in opposing the
defendants’ motions for summary judgment. Those
documents form a sizeable record on appeal. Singh offers
conclusory statements that he needed further discovery, but
Singh has not “identif[ied] the specific facts that further
40 SINGH V. AMERICAN HONDA FINANCE CORP.
discovery would have revealed or explain[ed] why those
facts would have precluded summary judgment.” Tatum v.
City & Cty. of S.F., 441 F.3d 1090, 1100 (9th Cir. 2006). We
cannot say the district court abused its discretion in denying
Singh’s request for further discovery. See Michelman,
685 F.3d at 892.
VI
We hold that the district court had subject-matter
jurisdiction over this case at the time of the final judgment.
We decline to order that this case be remanded to state court
because the case has been fully adjudicated on the merits and
it satisfies all jurisdictional requirements. On the merits, we
affirm the district court’s grant of summary judgment to all
defendants.
AFFIRMED.