Teresa Titus v. Zestfinance, Inc. ( 2019 )

FILED
NOT FOR PUBLICATION
DEC 02 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERESA TITUS, an individual and as a No. 18-35940
representative of the class,
D.C. No. 3:18-cv-05373-RJB
Plaintiff-Appellee,
v. MEMORANDUM*
BLUECHIP FINANCIAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submission Deferred October 25, 2019
Resubmitted November 27, 2019
Seattle, Washington
Before: CLIFTON, IKUTA, and BENNETT, Circuit Judges.
Teresa Titus moves to dismiss BlueChip Financial’s appeal of the district
court’s order denying its motion to compel arbitration. We grant Titus’s motion to
dismiss the appeal as moot.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Because Titus voluntarily dismissed her claims against BlueChip with
prejudice before BlueChip served either an answer or a motion for summary
judgment, see Fed. R. Civ. P. 41(a)(1)(A)(i), the case is no longer proceeding, and
“deciding [this appeal] would have no effect within the confines of the case itself.”
Tur v. YouTube, Inc., 562 F.3d 1212, 1214 (9th Cir. 2009). Therefore, this appeal
is moot. See Chafin v. Chafin, 568 U.S. 165, 172 (2013).
BlueChip’s arguments to the contrary lack merit. BlueChip’s contentions
that Titus acted improperly by failing to inform the district court that similar class
actions were pending against BlueChip and failing to inform the district court and
this Court of the terms of Titus’s settlement agreement with other defendants do
not change the fact that this action is no longer proceeding. Nor has BlueChip
cited any authority for the proposition that it was improper for Titus to dismiss her
action without explanation after the district court issued a stay order, and we have
found none. Finally, because BlueChip failed to assert its counterclaims in an
answer (which would have barred Titus’s voluntary dismissal under Rule
41(a)(1)(A)(i)), BlueChip’s assertions that it could have raised counterclaims
against Titus are unavailing.
We also reject BlueChip’s argument that there remains a live controversy
between the parties. It is irrelevant that Titus’s counsel have filed putative class
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actions against BlueChip in other cases with other plaintiffs, because we may not
look beyond “the confines of the case itself” in assessing mootness. Tur, 562 F.3d
at 1214. Therefore, even if BlueChip is correct that Titus’s attorneys engaged in
“strategic voluntary cessation,” such conduct does not affect our mootness
analysis. BlueChip has not identified any cognizable collateral consequences
arising within the “confines” of this case. Id. Nor does the case’s status as a
putative class action affect our analysis. Because no class has been certified, Titus
is the only plaintiff before the court; once she has dismissed her claims with
prejudice, no other plaintiff can step into her shoes to continue this legal action.
See Emp’rs-Teamsters Local Nos. 175 & 505 Pension Tr. Fund v. Anchor Capital
Advisors, 498 F.3d 920, 924 (9th Cir. 2007).
This case is also not “capable of repetition, yet evading review” in the
relevant sense. See Alcoa v. Bonneville Power Admin., 698 F.3d 774, 786 (9th Cir.
2012). Titus’s lawsuit against BlueChip does not involve “inherently fleeting”
activity that precludes judicial review, and there is no “reasonable expectation that
the same complaining party [will] be subjected to the same action again.” Id. at
786 (quoting Turner v. Rogers, 564 U.S. 431, 440 (2011)) (alteration in original).
Because Titus’s unilateral action caused this case to become moot, we vacate
the district court’s order denying the motion to compel arbitration. See U.S.
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Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 23 (1994). This vacatur
mitigates the “ongoing injury” and “collateral consequences,” if any, that BlueChip
may suffer as a result of the order. See City of Erie v. Pap’s A.M., 529 U.S. 277,
288 (2000); Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 791–92 (9th
Cir. 2018). We also dismiss the appeal as moot. Although we decline to designate
future appeals regarding the enforceability of BlueChip’s arbitration provision as
comeback cases, see Ninth Cir. General Orders 1.12, 3.6(d), our decision is without
prejudice to any future motion to assign an appeal raising the same legal issues to
this panel, see Circuit Advisory Committee Note to Rules 34-1 to 34-3.
VACATED AND DISMISSED.1
1
Each party shall bear its own costs.
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