Rentberry, Inc. v. the City of Seattle

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 30 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RENTBERRY, INC., a Delaware No. 19-35308 corporation; DELANEY WYSINGLE, an individual, D.C. No. 2:18-cv-00743-RAJ

Plaintiffs-Appellants,

v. ORDER*

CITY OF SEATTLE, a Washington municipal corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Submission Deferred March 4, 2020** Submitted July 29, 2020 Seattle, Washington

Before: IKUTA, R. NELSON, and HUNSAKER, Circuit Judges.

After reviewing the parties’ supplemental briefing on mootness, we

conclude this case is moot.

* This order is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). First, Appellants have not met their burden of showing a “reasonable

expectation” that Seattle will enact a same or similar ordinance in the future. See

Bd. of Trs. of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 1199

(9th Cir. 2019) (en banc). Neither the language of the repeal ordinance nor

Appellee’s efforts to gather data on the impact of rent-bidding platforms are

sufficient to overcome the presumption that “the government is acting in good

faith” when it voluntarily ceases challenged activity. See Am. Cargo Transp., Inc.

v. United States, 625 F.3d 1176, 1180 (9th Cir. 2010).

Second, while “[a] live claim for nominal damages will prevent dismissal for

mootness,” Bernhardt v. County of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002),

Appellants’ last-minute request for nominal damages is not live because it was not

raised before the district court. Their inclusion of a catch-all request for “such

additional relief as may be just and proper” in the complaint does not allow

Appellants to now attempt to “wrest a claim for nominal damages from [this]

general prayer for relief for the first time on appeal.” Bain v. Cal. Teachers Ass’n,

891 F.3d 1206, 1213–14 (9th Cir. 2018) (quoting Bayer v. Neiman Marcus Grp.,

Inc., 861 F.3d 853, 869 (9th Cir. 2017)).

Because there is no “change in the legal framework governing the case” and

Appellants do not have a “residual claim . . . that was understandably not asserted

previously,” N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct.

2 1525, 1526 (2020) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 482–483

(1990)), we vacate the district court’s judgment and remand with an instruction to

dismiss this case as moot.

VACATED AND REMANDED.