In the Matter of: GIGA WATT, INC., a Washington corporation v. Perkins Coie Llp, a Washington limited liability partnership

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: GIGA WATT, INC., a
Washington corporation,
Debtor,
------------------------------
MARK D. WALDRON, Chapter 7 Trustee,
Plaintiff-Appellee,
v.
PERKINS COIE LLP, a Washington limited
liability partnership; LOWELL NESS,
individual and California resident,
Defendants-Appellants,
and
GIGA WATT PTE., LTD., a Singapore
corporation; ANDREY KUZENNY, a citizen
of the Russian Federation,
Defendants.
No. 22-35104
D.C. No. 2:21-cv-00159-SAB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Stanley A. Bastian, Chief District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Argued and Submitted December 7, 2022
San Francisco, California
Before: GRABER, WALLACH,** and WATFORD, Circuit Judges.
Defendants appeal the denial of their motion to compel arbitration in an
adversary proceeding in bankruptcy court. Defendants sought to compel
arbitration on the ground that Plaintiff’s original complaint relied on a WTT Token
Purchase Agreement (“TPA”) that included an arbitration clause.
During the pendency of this appeal, the bankruptcy court permitted Plaintiff
to file an amended complaint that does not explicitly rely on the TPA for its
claims. Plaintiff argues that this appeal is moot, because the amended complaint
does not rely on the TPA, and thus there is no longer any basis to compel
arbitration. Defendants argue that the amended complaint still implicitly relies on
the TPA and that the bankruptcy court improperly allowed the amended complaint
to be filed during the pendency of this appeal. Plaintiff argues that the question of
the validity of the amended complaint is not before us because it is an
impermissible collateral attack.
Even if we were to agree that we must determine whether the amended
** The Honorable Evan J. Wallach, United States Circuit Judge for the
U.S. Court of Appeals for the Federal Circuit, sitting by designation.

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complaint is the operative complaint as a predicate to the mootness question, we
view the amended complaint as operative. A plaintiff is master of the complaint
and “an appeal seeking review of collateral orders does not deprive the trial court
of jurisdiction over other proceedings in the case.” Britton v. Co-op Banking Grp.,
916 F.2d 1405, 1412 (9th Cir. 1990).1
On its face, the amended complaint does not rely on the TPA. Further,
Plaintiff stipulated at oral argument that he abandons any claim that would arise in
any fashion out of the TPA, whether explicit or implicit. Thus, we dismiss the
appeal as moot.
DISMISSED.
1 We recognize that on December 9, 2022, the United States Supreme Court
granted the petition for a writ of certiorari in Coinbase, Inc. v. Bielski, No. 22-105,
2022 WL 17544994 (Dec. 9, 2022). The question presented by the petition is:
“Does a non-frivolous appeal of the denial of a motion to compel arbitration oust a
district court’s jurisdiction to proceed with litigation pending appeal, as the Third,
Fourth, Seventh, Tenth, Eleventh and D.C. Circuits have held, or does the district
court retain discretion to proceed with litigation while the appeal is pending, as the
Second, Fifth, and Ninth Circuits have held?” Joint Petition for a Writ of
Certiorari at i, Coinbase, No. 22-105, 2022 WL 3107708, at *i (July 29, 2022).
Unless the Supreme Court holds otherwise, we are bound to our precedent in
Britton on this issue.

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