RESERVE MEDIA, INC., a Delaware corporation v. Efficient Frontiers, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RESERVE MEDIA, INC., a Delaware
corporation,
Plaintiff-counter-
defendant-Appellee,
v.
EFFICIENT FRONTIERS, INC.,
Defendant-counter-claimant-
Appellant.
No. 17-55687
D.C. No.
2:15-cv-05072-DDP-AGR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted November 7, 2018
Pasadena, California
Before: WARDLAW, RAWLINSON, and HURWITZ, Circuit Judges.
On the eve of the scheduled oral argument in this appeal, Reserve Media, the
prevailing party below and Appellee here, filed an “Unopposed Motion
Withdrawing Answering Brief and Conceding Appeal.” Dkt. No. 42. Reserve
Media also asked us to “vacate the Judgment and Orders of the District Court with
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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prejudice.” Id. It indicated that this filing was made “pursuant to a confidential
settlement.” Id.
This appeal is therefore moot, and we must dismiss it. In re Pattullo, 271
F.3d 898, 900 (9th Cir. 2001) (“If a case becomes moot while pending on appeal, it
must be dismissed.”). As to Reserve Media’s request for vacatur, the Supreme
Court has held that “mootness by reason of settlement does not justify vacatur of a
judgment under review.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513
U.S. 18, 29 (1994). Rather, “the touchstone of vacatur is equity,” and the district
court is the appropriate venue for making that determination. Dilley v. Gunn, 64
F.3d 1365, 1370 (9th Cir. 1995). We therefore “remand so the district court can
consider whether to vacate its judgment in light of ‘the consequences and attendant
hardships of dismissal or refusal to dismiss’ and ‘the competing values of finality
of judgment and right to relitigation of unreviewed disputes.’” Id. at 1371 (quoting
Ringsby Truck Lines, Inc. v. W. Conferences of Teamsters, 686 F.2d 720, 722 (9th
Cir. 1982)).
DISMISSED; REMANDED.
Each party shall bear its own costs of appeal.

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