Teresa Titus v. Zestfinance, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 2, 2019
• Docket: 18-35940
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 02 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS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

2 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.

3 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. 4