Floyd Luman; Joel Amkraut v. JOE THEISMANN; NAC MARKETING COMPANY, LLC, DBA New Vitality

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLOYD LUMAN; JOEL AMKRAUT,
Plaintiffs - Appellants,
v.
JOE THEISMANN; NAC MARKETING
COMPANY, LLC, DBA New Vitality,
Defendants - Appellees.
No. 14-15385
D.C. No. 2:13-cv-00656-KJM-AC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted March 16, 2016**
San Francisco, California
Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.
Plaintiffs Floyd Luman and Joel Amkraut appeal the district court’s order
granting Defendants NAC Marketing Company, LLC’s (“NAC”) and Joe
Theismann’s motion to dismiss Plaintiffs’ complaint brought on behalf of a
FILED
APR 08 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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putative class for lack of standing under Federal Rule of Civil Procedure 12(b)(1).
Plaintiffs allege (i) violation of the Magnuson-Moss Warranty Act, (ii) breach of
express warranty, (iii) breach of implied warranty of merchantability, (iv) breach
of implied warranty of fitness for a particular purpose, (v) unjust enrichment,
(vi) violation of the California Consumers Legal Remedies Act (“CLRA”),
(vii) violation of California Unfair Competition Law, and (viii) violation of
California’s False Advertising Law in connection with NAC’s sales of its Super
Beta Prostate (“SBP”) product. They request declaratory and injunctive relief,
compensatory and punitive damages, and restitution.
The district court held that Plaintiffs’ individual claims for monetary relief
were rendered moot when NAC refunded Plaintiffs’ money to their credit cards.
The district court further held that Plaintiffs lacked standing to pursue injunctive
relief because they could not demonstrate a likelihood of future injury. The court
reasoned that because Luman’s individual claims were moot before he filed his
complaint, class certification of the putative class could not relate back to the
original complaint. The court further reasoned that Amkraut’s claims were moot
and not transitory because such claims would not expire before the court could rule
on class certification. Nor could the court conclude that Defendants’ litigation
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strategy was to “pick off” lead plaintiffs. We have jurisdiction under 28 U.S.C.
§ 1291. We affirm in part, reverse in part, and remand for further proceedings.
1. The district court did not err in dismissing Luman’s individual claim for
monetary relief. Luman filed his complaint two months after he received a
monetary refund from NAC, and therefore no longer met the injury-in-fact
requirement for standing at the time he filed his complaint. See Davis v. Fed.
Election Comm’n, 554 U.S. 724, 732-33 (2008) (noting that at the commencement
of the litigation plaintiff must satisfy the elements of standing including an injury-
in-fact, traceable to the defendant’s behavior, that is redressable by the court);
O’Shea v. Littleton, 414 U.S. 488, 494-96 (1974) (holding that past exposure to
illegal conduct does not establish standing such that a purported named plaintiff
may seek relief on behalf of himself or the class); see also Simon v. E. Ky. Welfare
Rights Org., 426 U.S. 26, 40 n.20 (1976) (“That a suit may be a class action . . .
adds nothing to the question of standing . . . .”). Though the district court
dismissed Luman’s claims as moot, Luman never had standing to pursue monetary
relief in the first place. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000) (“‘The requisite personal interest that must
exist at the commencement of the litigation (standing) must continue throughout its
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existence (mootness).’”) (quoting Arizonans for Official English v. Arizona, 520
U.S. 43, 68 n.22 (1997)).
In contrast to Luman’s claim, Amkraut’s individual claim for monetary
relief was unpaid when he joined the lawsuit. Amkraut therefore satisfied the
injury-in-fact requirement and had standing to sue. See Davis, 554 U.S. at 732-33.
The remaining question is whether the district court erred in holding that
Amkraut’s claim became moot when NAC issued him a refund. Subsequent to the
district court’s decision, the Supreme Court held that “an unaccepted settlement
offer or offer of judgment does not moot a plaintiff’s case.” Campbell-Ewald Co.
v. Gomez, 136 S. Ct. 663, 672 (2016). Under basic contract principles, a settlement
offer or offer of judgment, once rejected, has no continuing efficacy. Id. at 670.
Because of this change in law, we vacate the portion of the district court’s decision
dismissing Amkraut’s individual claim as moot and remand for the district court to
reconsider in light of Campbell-Ewald.
2. The district court did not err in determining that Plaintiffs lack standing
to pursue injunctive relief. To maintain standing, Plaintiffs must show a sufficient
likelihood that they will be injured by NAC again in a similar way and that the
future injury can be redressed by injunctive relief. See Bates v. United Parcel
Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007). Because Plaintiffs do not allege that
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they intend to purchase SBP in the future, they cannot demonstrate a likelihood of
future injury. See Perez v. Nidek Co., Ltd., 711 F.3d 1109, 1113-14 (9th Cir. 2013)
(holding that because a plaintiff did not intend to have further eye surgery, he did
not have standing to pursue injunctive relief under the California CLRA); Bates,
511 F.3d at 985. Therefore, the district court properly dismissed Plaintiffs’ claims
for injunctive relief.
3. Because Theismann is merely the celebrity spokesperson for NAC and
not the seller of SBP, the district court properly dismissed the claims against him.1
See Cal. Com. Code § 2103(1)(d) (defining a seller as “a person who sells or
contracts to sell goods”). Theismann never held title to SBP nor passed title to
Plaintiffs. See id. § 2106(1) (“A ‘sale’ consists in the passing of title from the
seller to the buyer for a price.”). Therefore, we affirm dismissal on alternate
grounds only as to defendant Theismann based on Plaintiffs’ failure to state a claim
against him under Federal Rule of Civil Procedure 12(b)(6).
4. Though we may affirm on any ground supported by the record, we are
not obliged to do so. See Portman v. County of Santa Clara, 995 F.2d 898, 910
(9th Cir. 1993). We make no determination on the merits of NAC’s remaining
1We may affirm the dismissal of Plaintiffs’ claims on any ground supported
by the record. See Portman v. County of Santa Clara, 995 F.2d 898, 910 (9th Cir.
1993).
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Rule 12(b)(6) motion for failure to state a claim. The district court should have the
first opportunity to evaluate that motion.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
FOR FURTHER PROCEEDINGS.
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