gator.com Corp. v. L.L. Bean, Inc. ( 2005 )

O’SCANNLAIN, Circuit Judge:

We must decide whether a declaratory judgment action initiated to determine the legality of a software vendor’s pop-up advertising program is rendered moot by a settlement under which the vendor permanently modified its software and the website owner relinquished all claims.

I

Gator.com Corporation¹ is the proprietor of a software program that enables computer users to store personal information — including addresses, credit card numbers, and passwords — in a “digital wallet.” When a website prompts the user for such information, Gator’s digital wallet automatically inputs it. The program also provides users with discount coupons and other special offers that “pop up” on the computer screen when the user visits certain websites preselected by Gator. Until November 20, 2004, one of the targets of Gator’s pop-up advertisements was the website operated by L.L. Bean, Inc., a clothing manufacturer that sells its products over the Internet, via a mail-order catalog, and in retail stores. When a user of computer equipment on which the Gator software was installed visited L.L. Bean’s website, the program triggered a discount coupon for Eddie Bauer — an L.L. Bean competitor — to appear on the screen.

A

In a cease-and-desist letter sent to Gator in March 2001, L.L. Bean alleged that these pop-up advertisements misappropriated the good will associated with its trademark and threatened to initiate legal action if Gator did not discontinue this advertising practice. Gator responded by filing suit against L.L. Bean in the United States District Court for the Northern District of California. Gator requested a declaratory judgment that its program “does not infringe or dilute, directly or contributorily, any trademark held by [L.L. Bean] and does not constitute unfair competition, a deceptive or unfair trade or sales practice, false advertising, fraud or any other violation of either federal or state law.” Compl. at 4. Gator sought no other forms of relief.

L.L. Bean moved to dismiss the suit on the ground that the district court lacked personal jurisdiction because L.L. Bean was incorporated and headquartered in Maine and maintained no physical presence in California. Upon concluding that both general and specific personal jurisdiction over L.L. Bean were absent, the district court granted the motion to dismiss. Gator timely appealed.

B

After the parties had briefed the personal jurisdiction issue and the en banc court had heard oral argument, the parties jointly informed us that they had reached a confidential settlement of other litigation in which they were involved. The parties assured us, however, that the settlement “does not provide for the dismissal of this appeal.” Joint Letter of Sept. 1, 2004. Mindful of our constitutional obligation to police jurisdictional matters assiduously, we nevertheless requested a copy of the settlement agreement, which the parties submitted under seal.²

Under the terms of the settlement, Gator agreed to place no more than twenty-five pop-up advertisements per month on the L.L. Bean website between August 21, 2004, and November 20, 2004. The agreement further provided that, after this three-month period had elapsed, Gator would permanently discontinue the use of all such advertisements on the L.L. Bean website. Gator also agreed to make a monetary payment to L.L. Bean. In exchange for these concessions, L.L. Bean renounced all claims arising from Gator’s use of pop-up advertisements prior to — or in accordance with — the agreement.

Regarding this litigation, the parties agreed:

L.L. Bean may, at its sole discretion, require[Gator] to file an agreed upon motion to dismiss the appeal without costs to any party; if the decision of the United States District Court for the Northern District of California issued on November 21, 2001 is affirmed, finally, then [Gator] shall pay L.L. Bean an additional $10,000; in the event the decision of the United States District Court for the Northern District of California issued on November 21, 2001 is not affirmed, finally, no payment shall be owed to any party.

Settlement Agreement ¶ 3.2.

After reviewing the settlement agreement, we issued an order to show cause why this appeal should not be dismissed as moot. Both parties have submitted responses opposing dismissal.

II

It is an inexorable command of the United States Constitution that the federal courts confine themselves to deciding actual cases and controversies. See U.S. CONST. art. III, § 2, cl. 1. For a case to fall within the parameters of our limited judicial power, “it is not enough that there may have been a live case or controversy when the case was decided by the court whose judgment we are reviewing.” Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987). Rather, Article III requires that a live controversy persist throughout all stages of the litigation. See Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (“an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed”). Where this condition is not met, the case has become moot, and its resolution is no longer within our constitutional purview. See Foster v. Carson, 347 F.3d 742, 747 (9th Cir.2003) (“We do not have the constitutional authority to decide moot cases.”). Because “[mjootness is a jurisdictional issue,” id. at 745, we are obliged to raise it sita sponte. See Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir.2004).

The limitations that Article III imposes upon federal court jurisdiction are not relaxed in the declaratory judgment context. Indeed, the case-or-controversy requirement is incorporated into the language of the very statute that authorizes federal courts to issue declaratory relief. See 28 U.S.C. § 2201 (“In a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration....” (emphasis added)). The “test for mootness in the context of a case, like this one, in which a plaintiff seeks declaratory relief ... is ‘whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ” Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1174-75 (9th Cir.2002) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)). Stated another way, the “central question” before us is “whether changes in the circumstances that prevailed at the beginning of litigation have forestalled any occasion for meaningful relief.” West v. Sec’y of the Dep’t of Transp., 206 F.3d 920, 925 n. 4 (9th Cir.2000) (quoting 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3533.3, at 268 (1984)).

A

The Supreme Court has repeatedly held that the requisite case or controversy is absent where a plaintiff no longer wishes — or is no longer able' — to engage in the activity concerning which it is seeking declaratory relief.

In Golden v. Zwickler, 394 U.S. 103, 105-06, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), for example, the plaintiff sought a declaratory judgment that it was unconstitutional for the State of New York to prohibit him from distributing anonymous election leaflets about a specific member of Congress seeking re-election. The Supreme Court dismissed the case as moot because, after the case was brought, the member of Congress in question was appointed to serve as a state court judge. Id. at 109-10, 89 S.Ct. 956. The plaintiff was thus no longer able to engage in the electioneering activity about which he had requested declaratory relief. Id. at 109, 89 S.Ct. 956.

Similarly, in Steffel v. Thompson, 415 U.S. at 454-55, 94 S.Ct. 1209, the plaintiff sought a declaratory judgment that a state criminal trespass statute was being applied in a manner that deprived him of his First Amendment right to distribute handbills protesting the Vietnam War. After the suit was filed, however, the United States sharply decreased its military presence in Southeast Asia. Id. at 460, 94 S.Ct. 1209. The Court therefore instructed the district court to determine on remand whether this development had neutralized the petitioner’s desire to engage in handbilling and thereby mooted the case. See id. (“it will be for the District Court on remand to determine if subsequent events have so altered petitioner’s desire to engage in handbilling at the shopping center that it can no longer be said that this case presents a substantial controversy” (internal quotation marks omitted)).

We have confronted similar cases. In Blair v. Shanahan, 38 F.3d 1514, 1519-20 (9th Cir.1994), for example, we expressly relied upon Golden and Steffel to dismiss an appeal as moot. There, the plaintiff sought a declaratory judgment invalidating a California statute banning aggressive panhandling. Id. at 1516-17. Although the plaintiff had previously been a panhandler, by the time that he filed suit he. had obtained employment and had thus stopped begging for money. Id. at 1517. In concluding that these changed circumstances mooted the case, we explained that “Blair lacks the personal stake necessary to litigate his request for a declaratory judgment because he no longer wishes to engage in the activity proscribed by the statute that he is challenging.” Id.; see also Sellers v. Regents of the Univ. of Cal., 432 F.2d 493, 500 (9th Cir.1970) (holding that an actual controversy was absent where a request for a declaratory judgment invalidating a university resolution governing the public use of school facilities was brought by plaintiffs who did not intend to hold any future gatherings in those facilities); cf. RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1056-57 (9th Cir.2002) (concluding that the plaintiffs lacked standing to request a declaratory judgment invalidating a city noise ordinance because they no longer owned the night club that had previously been subject to the ordinance).³

B

The lessons of Golden and its progeny guide our mootness inquiry in this case. Here, Gator filed suit to obtain a declaratory judgment that its practice of placing pop-up advertisements on L.L. Bean’s website did not constitute copyright infringement, false advertising, trademark dilution, or unfair competition. In accordance with the parties’ settlement agreement, however, Gator has since permanently discontinued its use of pop-up advertisements on L.L. Bean’s website. Like the ex-handbiller in Golden and the one-time panhandler in Blair, Gator is therefore unable to obtain a declaratory judgment because it “no longer wishes to engage in the activity” concerning which it initially sought declaratory relief. Blair, 38 F.3d at 1520. The unavailability of declaratory relief is reinforced by the fact that L.L.' Bean has released Gator from all liability associated with the pop-up advertisements previously displayed on L.L. Bean’s website. See Super Sack Mfg. Corp. v. Chase Packaging Corp., 57 F.3d 1054, 1059 (Fed.Cir.1995) (holding that a patent holder’s renunciation of all infringement claims arising from the products currently manufactured by a competitor mooted the competitor’s request for a declaratory judgment of patent invalidity).

Because the parties’ settlement agreement has wholly eviscerated the dispute that prompted Gator to initiate this suit, Gator’s request for declaratory relief no longer gives rise to a live case or controversy. See Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d 1012, 1015 (9th Cir.1989) (“A case or controversy exists justifying declaratory relief only when the challenged ... activity ... has not evaporated or disappeared” (internal quotation marks omitted)).

C

Notwithstanding the fact that Gator is now ineligible for declaratory relief, the parties argue that a live controversy remains before us because the settlement agreement requires Gator to pay L.L. Bean $10,000 if we affirm the district court’s jurisdictional dismissal. Although several decisions have indeed found the existence of a live controversy after the parties entered into a contingent settlement agreement, those decisions are not controlling on the facts before us.

In Havens Realty Corp. v. Coleman, 455 U.S. 363, 367, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), for example, the plaintiffs requested monetary — as well as declaratory and injunctive — relief under the Fair Housing Act. After the court of appeals held that the plaintiffs had standing to pursue their claim, the parties agreed that the plaintiffs would receive $400 and no further relief if the Supreme Court denied certiorari or granted certiorari and affirmed; if the Court granted certiorari and reversed, neither party would owe the other anything. Id. at 371, 102 S.Ct. 1114. The Court held that the case was not moot because the settlement agreement merely liquidated the monetary damages that the plaintiffs had been seeking all along. See id. (emphasizing that the plaintiffs “continue to seek damages to redress alleged violations of the Fair Housing Act”).

Similarly, in Nixon v. Fitzgerald, 457 U.S. 731, 739-40, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), the plaintiff sought civil damages from former President Nixon on the ground that he had been terminated from his Air Force job as a result of impermissible government retaliation. After the court of appeals ruled that Nixon was not entitled to absolute immunity, the parties agreed that the plaintiff would receive $28,000 if the Supreme Court determined that the President was not entitled to absolute immunity and no payment if the Court concluded otherwise. Id. at 743-44, 102 S.Ct. 2690. The Court relied upon Havens to hold that the case was not moot. Id. at 744, 102 S.Ct. 2690.

Havens and Nixon can be readily distinguished from the instant case because neither decision is a declaratory judgment action. Instead, both cases involve plaintiffs who were seeking monetary damages and who agreed to accept a liquidated payment if they prevailed on appeal. The contingent settlement agreements therefore preserved a live controversy because they afforded these plaintiffs the opportunity to obtain meaningful monetary relief — the very type of relief that they sought to recover by filing suit in the first place. In contrast, Gator initiated this suit to obtain a declaratory judgment, but we can no longer grant that relief because Gator has agreed to terminate its pop-up advertisements and has been released from liability for its past conduct. Thus, unlike in Havens and Nixon, the contingent payment for which the parties’ settlement provides does not preserve Gator’s ability to recover any of the relief upon which this suit was initially premised.

Because we can no longer award Gator any meaningful relief, the personal jurisdiction issue upon which the $10,000 payment hinges is a mere vestige of the parties’ now extinguished dispute. See In re Pattullo, 271 F.3d 898, 901 (9th Cir.2001) (“If an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, the appeal is moot and must be dismissed .... ” (internal quotation marks omitted)). Although the parties have negotiated a “side bet” concerning our resolution of this appeal, that wager does not alter the fact that the personal jurisdiction issue is wholly divorced from any live case or controversy.⁴

Ill

There is no live controversy before us because the parties’ settlement agreement has resolved all facets of their dispute and has thereby mooted this appeal. If we were to reach the merits of the personal jurisdiction issue that remains before us, we would run squarely afoul of the Supreme Court’s admonition “to avoid advisory opinions on abstract propositions of law.” Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969); see also Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir.2000) (en banc) (“Our role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution.”).

In undertaking our mootness inquiry, we have not overlooked the fact that the judicial system has already invested significant resources in this case. “To abandon the case at an advanced stage may prove more wasteful than frugal,” and a flexible application of the mootness doctrine may therefore be appropriate. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 191-92, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). While mootness analysis must therefore eschew undue formalism, it must nevertheless operate within the well-defined contours of Article III. The Supreme Court has accordingly explained that this “argument from sunk costs [to the judiciary] does not license courts to retain jurisdiction over cases in which one or both of the parties plainly lacks a continuing interest, as when the parties have settled.” Id. at 192, 120 S.Ct. 693 (emphasis added; footnote omitted).

Because the bounds of our judicial power cannot be overstepped for the sake of expediency, we must await another opportunity to resolve the important issues of personal jurisdiction originally raised by this appeal. Although it is emphatically the province of the judiciary “to say what the law is,” Marbury v. Madison, 5 U.S. 137 (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), the Constitution is equally emphatic that we may do so only in the course of deciding a live case or controversy.

DISMISSED.

1 . Gator.com Corporation is now known as the Ciaría Corporation. For ease of reference, it will be referred to as “Gator” throughout.

2 . Because the parties emphasized to us the confidential nature of their settlement, we permitted the agreement to be filed under seal and instructed the parties to submit a copy of any sealing order. Upon reviewing their submission, we learned that no court had actually ordered that the agreement be sealed. In the absence of such an order, it is appropriate for us to disclose the settlement agreement's content because the outcome of our mootness inquiry hinges upon those specifics. Cf. Circuit Advisory Committee Note to Ninth Circuit Rule 27-13 ("any portion of the district court or agency record that was sealed below shall remain under seal upon transmittal to this court” (emphasis added)). In any event, none of the provisions that we discuss implicates the parties’ proprietary information or trade secrets.

3 . Because Golden and Blair involve a plaintiffs cessation of the conduct about which declaratory relief is being sought, they are consistent with other decisions in which we have found a live controversy even after the defendant unilaterally discontinued the activity that prompted the plaintiff to file suit. See, e.g., Jacobus v. Alaska, 338 F.3d 1095, 1103 (9th Cir.2003) ("a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice” (internal quotation marks omitted)). Indeed, defendants who argue that a case has been mooted by their voluntary cessation of allegedly wrongful conduct must meet a very high burden because a mootness-based dismissal would "leave the defendant ... free to return to his old ways.” Fed. Trade Comm’n v. Affordable Media, LLC, 179 F.3d 1228, 1238 (9th Cir.1999) (alteration in original; internal quotation marks omitted). This consideration is absent where the plaintiff voluntarily discontinues the activity concerning which it is seeking declaratory relief. Cf. id. at 1237 (while "the victim can moot her need for injunctive relief by her own conduct, ... the alleged wrongdoer can not moot the need for injunc-tive relief as easily”).

4 . The settlement agreement also provides that Gator must move to dismiss the appeal if L.L. Bean so requests, and it is therefore conceivable that L.L. Bean could have compelled Gator to seek a dismissal if our resolution of the personal jurisdiction issue had been unfavorable to L.L. Bean. The fact that the settlement may endow L.L. Bean with the authority to control the outcome of this appeal bolsters our conclusion that we are not confronted by adverse parties litigating an actual controversy. We do not, however, express any views regarding whether we are obliged to grant an unopposed motion to dismiss filed after an opinion is announced but before the mandate is issued. But see Okla. Radio Assocs. v. FDIC, 3 F.3d 1436, 1444 (10th Cir.1993) (refusing to grant such a motion).