Patrick Berry v. webloyalty.com, Inc.

FILED
NOT FOR PUBLICATION APR 25 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PATRICK BERRY, on behalf of himself No. 11-55764
and all others similarly situated,
D.C. No. 3:10-cv-01358-H-CAB
Plaintiff - Appellant,
v. MEMORANDUM *
WEBLOYALTY.COM, INC., a Delaware
corporation; MOVIETICKETS.COM,
INC., a Delaware corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted January 11, 2013
Pasadena, California
Before: O’SCANNLAIN and W. FLETCHER, Circuit Judges, and KORMAN,
Senior District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
Plaintiff Patrick Berry appeals the district court’s dismissal of his suit for
failure to state a claim against Webloyalty.com and Movietickets.com. We vacate
and remand because Berry lacks Article III standing.
“To invoke the jurisdiction of the federal courts,” Berry “must satisfy the
threshold requirement imposed by Article III of the Constitution by alleging an
actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).
To have constitutional standing under Article III, a party must demonstrate an
injury in fact that is traceable to the challenged action and that is likely to be
redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). At the motion to dismiss stage, we accept as true all factual
allegations in the complaint and draw all reasonable inferences therefrom in the
nonmoving party’s favor. Ass’n for L.A. Deputy Sheriffs v. Cnty. of L.A., 648 F.3d
986, 991 (9th Cir. 2011). “[B]ecause issues of constitutional standing are
jurisdictional, they must be addressed whenever raised.” Pershing Park Villas
Homeowners Ass’n v. United Pacific Ins. Co., 219 F.3d 895, 899 (9th Cir. 2000).
Berry has alleged no injury in fact sufficient to support Article III standing.
The record reveals Berry was fully compensated by Webloyalty.com for the $36.00
charged against his debit card. The $1.00 charge appearing in his account history
is clearly marked as a debit card authorization rather than as an actual charge.
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Berry has not shown that he incurred any other injury as a result of defendants’
actions.
Because we hold that Berry lacks standing, we do not reach his other
contentions. We “vacate the district court’s order and remand with
instructions to dismiss without prejudice.” Fleck & Assocs. v. City of Phoenix, 471
F.3d 1100, 1106 (9th Cir. 2006).
VACATED, and REMANDED with instructions.
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