Robert Adam Kennedy, an individual on behalf of himself v. NATURAL BALANCE PET FOODS, INC., a California corporation

* 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NOT FOR PUBLICATION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
ROBERT ADAM KENNEDY, an
individual on behalf of himself, and on
behalf of all persons similarly situated,
Plaintiff - Appellant,
v.
NATURAL BALANCE PET FOODS,
INC., a California corporation,
Defendant - Appellee.
No. 08-56378
D.C. No. 3:07-cv-01082-H-RBB
MEMORANDUM *
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted December 10, 2009
Pasadena, California
Before: PREGERSON, NOONAN and PAEZ, Circuit Judges.
Appellant Robert Kennedy filed this proposed class action in San Diego
Superior Court on behalf of himself and all individuals in the United States who
purchased allegedly mislabeled pet food products sold by Natural Balance Pet
FILED
JAN 06 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Foods, Inc. The action was removed to federal court pursuant to 28 U.S.C. §
1441(a) and the Class Action Fairness Act, codified at 28 U.S.C. § 1332(d). The
district court denied Kennedy’s motion to certify a nationwide class and
subsequently dismissed the action for lack of subject-matter jurisdiction. Kennedy
appeals both orders. We affirm the denial but vacate the dismissal with
instructions to remand the action to San Diego Superior Court.
Rule 23 of the Federal Rules of Civil Procedure governs when a federal
court may certify a class. A class must satisfy the four prerequisites of Rule 23(a)
and fall into one of the three categories of class actions defined in Rule 23(b). Fed.
R. Civ. P. 23; Parra v. Bashas’, Inc., 536 F.3d 975, 978 (9th Cir. 2008). The party
seeking class certification must demonstrate that certification is warranted, and the
court must conduct a “rigorous analysis” to determine that the prerequisites of Rule
23 have been met. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th
Cir. 2001). In reviewing a denial of class certification, the standard of review is for
abuse of discretion. Parra, 536 F.3d at 977.
We affirm the denial of Kennedy’s class certification motion. Kennedy
alleged violations of California’s Unfair Competition Law (“UCL”), Cal. Bus. &
Prof. Code § 17200, and California’s Consumer Legal Remedies Act (“CLRA”),
Cal. Civ. Code § 1770. In his CLRA claim, Kennedy also alleged violations of

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“parallel sister state statutes,” asserting that “all other states have consumer fraud
statutes which are substantially similar” to the CLRA. The district court denied
class certification in part because Kennedy failed to show that the proposed class
satisfied the commonality and typicality requirements of Rule 23(a)(2) and (3). In
so doing, the court noted Zinser’s requirement that the class plaintiff provide a
“thorough analysis of the applicable state laws” in a situation where “different
states’ laws would apply to the claims.” 253 F.3d at 188-89. Kennedy now
concedes that the CLRA claim should be limited to a California class. In addition,
as the district court noted, the CLRA applies only to “consumers,” but the
proposed class consists of all “individuals” who purchased the challenged
products, regardless of the purpose for which the products were purchased.
The district court’s analysis under Rule 23 conflates the permissive
commonality and typicality requirements of Rule 23(a)(2) and (3) with the more
rigorous predominance requirement of Rule 23(b)(3). Nonetheless, we affirm the
court’s ultimate determination not to certify the class under Rule 23, because
Kennedy failed to satisfy the predominance requirement of Rule 23(b)(3) with
respect to the CLRA claim. See Zinser, 253 F.3d at 1189 (“Understanding which
law will apply before making a predominance determination is important when
there are variations in applicable state law.”). While Kennedy contends that the

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district court should have certified a nationwide class for the UCL claim, failure to
certify a subclass or certify a class with respect to particular issues is not an abuse
of discretion. See Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 947 (9th
Cir. 2009); Zinser, 253 F.3d at 1189-90. Accordingly, pursuant to Rule 23(b)(3),
we affirm the denial of Kennedy’s motion for certification of the proposed
nationwide class.
The parties do not dispute that once the district court denied class
certification, it no longer had subject-matter jurisdiction over the action. The
district court erred in dismissing the case rather than remanding the action to state
court. Section 1447(c) of Title 28, which applies to cases removed from state
court, provides that “[i]f at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.” This
provision is mandatory. See Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251,
1257-58 (9th Cir. 1997).
For the reasons above, the denial of Kennedy’s motion for class certification
is AFFIRMED. The order dismissing the action for lack of subject-matter
jurisdiction is VACATED and REMANDED with instructions to remand the
action to San Diego Superior Court.

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