In Re: UNITED PARCEL SERVICE "AIR-IN-GROUND" MARKETING AND SALES PRACTICES LITIGATION ( 2014 )

FILED
NOT FOR PUBLICATION JUL 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: UNITED PARCEL SERVICE, No. 11-56478
“AIR-IN-GROUND” MARKETING
AND SALES PRACTICES D.C. No. 2:10-ml-02153-GW-PJW
LITIGATION,
_________________________________
POCINO FOODS COMPANY;
ARAPAHOE HYUNDAI, LLC; AMENDED MEMORANDUM*
OWENS FINANCIAL GROUP, INC.;
DESIGNER IMPORTS
INTERNATIONAL, INC.,
Plaintiffs - Appellants,
v.
UNITED PARCEL SERVICE, INC.;
UNITED PARCEL SERVICE CO., a
Delaware corporation, DBA United
Parcel Service Co. (Air); UNITED
PARCEL SERVICE GENERAL
SERVICES CO., a Delaware
corporation,
Defendants - Appellees.
On Appeal from the United States District Court
for the Central District of California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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George H. Wu, District Judge, Presiding
Argued and Submitted
April 9, 2013—Pasadena, California
Before: REINHARDT and MURGUIA, Circuit Judges, and MOLLOY,
District Judge.**
In this appeal, we consider whether the district court properly dismissed
Plaintiffs’ claims in a multi-district litigation case without first making a choice-of-
law determination. Choice of law was neither discussed nor resolved at the district
court level and the shipping contract in question does not include a choice-of-law
provision or indicate which state law should govern. The four suits in this case
were filed in California, Colorado, and Georgia. The district court and the parties
proceeded on the assumption that California law applies.
In multi-district litigation, the district court must apply the choice-of-law
rules that govern in the forum from which each particular lawsuit was transferred
(i.e., in law of the state where the suit was filed). See Nucorp Energy Sec. Litig.,
772 F.2d 1486, 1492 (9th Cir. 1985); see also In re Colgate Palmolive Softsoap
Antibacterial Handsoap Mktg. & Sales Practices Litig., 2013 WL 1332097
(D.N.H. 2013) (noting the correct choice-of-law analysis and denying the
**
The Honorable Donald W. Molloy, District Judge for the U.S. District
Court for the District of Montana, sitting by designation.
Page 2 of 3
defendant’s motion to dismiss without prejudice where neither party adequately
briefed the relevant choice of law principles); see also In re Cheerios Mktg. &
Sales Practices Litig., 2012 WL 3952069 (D.N.J. 2012) (undertaking a separate
choice of law analysis for each transferred case). The district court’s dismissal of
Plaintiffs’ claims cannot be reviewed in the absence of a determination of the
applicable state law, as it may be decisive of whether or not the district court’s
Rule 12(b)(6) dismissal was appropriate as to each of Plaintiffs’ claims. See, e.g.,
Northwest, Inc. v. Ginsberg, ___ U.S. ___, 134 S. Ct. 1422 (2014) (holding that the
applicable state law is determinative of whether or not a claim for breach of the
implied covenant of good faith and fair dealing is preempted by Federal law).
Accordingly, the district court should have addressed choice of law and
conflict of law before making a determination on the merits of UPS’s dismissal
motions. Consequently, the judgment is vacated and the case is remanded for
choice-of-law and conflict-of-law analysis on Plaintiffs’ claims, and once
determined, if appropriate, for resolution on the merits.
VACATED and REMANDED. Each party shall bear its own costs on
appeal.
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