Opinion
No. 19-35308
07-30-2020
RENTBERRY, INC., a Delaware corporation; DELANEY WYSINGLE, an individual, Plaintiffs-Appellants, v. CITY OF SEATTLE, a Washington municipal corporation, Defendant-Appellee.
NOT FOR PUBLICATION
D.C. No. 2:18-cv-00743-RAJ ORDER 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.
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). --------
After reviewing the parties' supplemental briefing on mootness, we conclude this case is moot.
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. 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.