Kathleen Edwards v. Princess Cruise Lines, Ltd.

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHLEEN EDWARDS,
Plaintiff - Appellant,
v.
PRINCESS CRUISE LINES, LTD.,
Defendant - Appellee.
No. 07-15251
D.C. No. CV-05-03076-BZ
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Bernard Zimmerman, Magistrate Judge, Presiding
Argued and Submitted February 9, 2010
San Francisco, California
Before: O’SCANNLAIN, TROTT, and PAEZ, Circuit Judges.
Kathleen Edwards appeals from the district court’s grant of summary
judgment to Princess Cruise Lines, Ltd. (“Princess”), denial of post-judgment
relief, and award of costs in this action arising under the Americans with
FILED
MAR 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Disabilities Act (“ADA”) and California law. The facts are known to the parties,
and we do not repeat them here except as necessary.
I
“Federal courts are required sua sponte to examine jurisdictional issues such
as standing.” D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th
Cir. 2008) (internal quotation marks omitted). Moreover, the issue of standing is
nonwaivable. Id. at 1036. Having examined the record, we are satisfied that
Edwards has established that she has standing. Id. at 1037; Pickern v. Holiday
Quality Foods Inc., 293 F.3d 1133, 1137-38 (9th Cir. 2002).
II
A
The district court granted summary judgment on grounds that the six-month
contractual limitations period in the passage contract for the 2003 cruise barred
Edwards’ claims. Invocation of a contractual limitations period to bar a claim is an
affirmative defense. Han v. Mobil Oil Corp., 73 F.3d 872, 877-78 (9th Cir. 1995).
Therefore, Princess bears the burden of proof and “must come forward with
evidence which would entitle it to a directed verdict if the evidence went
uncontroverted at trial.” Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)
(internal quotation marks omitted).

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We are persuaded, however, that Princess failed to carry its initial burden on
summary judgment. Because its motion misconstrued Edwards’ claims as relating
to her 2003 cruise only (as distinguished from injunctive relief for future cruises),
Princess failed to establish that they fell within the ambit of the contractual
limitations period. Furthermore, even assuming that they did, Princess failed to
address the “two-pronged ‘reasonable communicativeness’ test” that this court
employs “to determine under federal common law and maritime law when the
passenger of a common carrier is contractually bound by the fine print of a
passenger ticket.” Wallis v. Princess Cruises, Inc., 306 F.3d 827, 835 (9th Cir.
2002).
Having failed to establish that it was entitled to a directed verdict on its
affirmative defense, Princess never shifted the burden to Edwards to “com[e]
forward with evidence to defeat the motion for summary judgment” on the defense.
Houghton, 965 F.2d at 1537. Hence, the district court erred in concluding that
“Edwards impermissibly rested on the allegations . . . in her Complaint” and that
Princess was therefore entitled to summary judgment on the contractual limitations
defense.
B

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In light of the foregoing, we dismiss as moot Edwards’ appeal from the1
denial of her motion for post-judgment relief pursuant to Federal Rules of Civil
Procedure 59 and 60. Noyes v. Kelly Servs., 488 F.3d 1163, 1174 (9th Cir. 2007).
4
Although we may affirm summary judgment on any ground supported by
the record, we decline to do so here because “we see no reason to decide ab initio
issues that the district court has not had an opportunity to consider and that present
questions of first impression in our circuit.” Badea v. Cox, 931 F.2d 573, 575 n.2
(9th Cir. 1991). Consequently, we remand to the district court to consider whether
Princess is entitled to summary judgment on any of the alternative grounds
presented in its motion for summary judgment. We also vacate the award of costs.
Solis v. County of Los Angeles, 514 F.3d 946, 958-59 (9th Cir. 2008).
REVERSED and REMANDED.1

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