Harold Maple, individually and on behalf of all others similarly situated v. Costco Wholesale Corporation, a Washington corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAROLD MAPLE, individually and on
behalf of all others similarly situated,
Plaintiff - Appellant,
v.
COSTCO WHOLESALE
CORPORATION, a Washington
corporation; NIAGARA BOTTLING
LLC, a California limited liability
company,
Defendants - Appellees.
No. 13-36089
D.C. No. 2:12-cv-05166-RMP
MEMORANDUM*
HAROLD MAPLE, individually and on
behalf of all others similarly situated,
Plaintiff - Appellee,
v.
COSTCO WHOLESALE
CORPORATION, a Washington
corporation,
Defendant - Appellant,
No. 14-35038
D.C. No. 2:12-cv-05166-RMP
FILED
MAY 09 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.

-- 1 of 5 --

and
NIAGARA BOTTLING LLC, a California
limited liability company,
Defendants.
HAROLD MAPLE, individually and on
behalf of all others similarly situated,
Plaintiff - Appellee,
v.
COSTCO WHOLESALE
CORPORATION, a Washington
corporation,
Defendants,
and
NIAGARA BOTTLING LLC, a California
limited liability company,
Defendant - Appellant.
No. 14-35059
D.C. No. 2:12-cv-05166-RMP
Appeals from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
2

-- 2 of 5 --

Submitted May 5, 2016**
Seattle, Washington
Before: GRABER, BERZON, and MURGUIA, Circuit Judges.
Plaintiff Harold Maple appeals the district court’s dismissal, without leave to
amend, of his putative class-action complaint alleging deceptive labeling in
violation of the Washington Consumer Protection Act resulting from his purchase
of "VitaRain Tropical Mango Vitamin Enhanced Water Beverage." Defendants
Costco Wholesale Corporation and Niagara Bottling LLC cross-appeal,
challenging the court’s decision to dismiss "without prejudice." We affirm in part,
vacate in part, and remand with instructions to re-enter the judgment "with
prejudice."
1. The district court correctly held that the complaint failed to state a claim.
See Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir.
2007) (holding that we review de novo a dismissal for failure to state claim). As a
matter of law, the name of the beverage is not "likely to mislead a reasonable
consumer." Panag v. Farmers Ins. Co. of Wash., 204 P.3d 885, 894–95 (Wash.
2009) (internal quotation marks omitted). The district court’s decision in
Ackerman v. Coca-Cola Co., No. CV-09-0395, 2010 WL 2925955 (E.D.N.Y. July
** The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
3

-- 3 of 5 --

21, 2010) (unpublished), is not to the contrary. In that case, the court found
important that the beverage’s name—"vitaminwater"—contained the full names of
two of the ingredients and that the label included misleading statements such as
"vitamins+water = what’s in your hand." Id. at *12–15. Here, the term "Vita"
could mean many things, rain could not be an actual ingredient, and the label
contains no misleading statements.
To the extent that Plaintiff’s claim challenges the labeling of the type of
"caffeine" or "tonic" as "natural" or "all natural" and the failure to describe the
caffeine and other ingredients as "unnatural," the claim fails because Plaintiff has
not alleged that he read those parts of the label. Accordingly, he cannot establish
causation. See, e.g., Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash.,
Inc., 170 P.3d 10, 22 (Wash. 2007) ("A plaintiff must establish that, but for the
defendant’s unfair or deceptive practice, the plaintiff would not have suffered an
injury.").
2. The district court correctly held that dismissal without leave to amend
was proper. On appeal, Plaintiff argues that amendment could save the complaint
because he could allege a subclass of plaintiffs who did read the relevant parts of
the label. But because Plaintiff’s own individual claim fails, dismissal without
leave to amend was correct; the potential existence of other classes of which
4

-- 4 of 5 --

Plaintiff is not a member is irrelevant. Sanford v. MemberWorks, Inc., 625 F.3d
550, 560–61 (9th Cir. 2010); Boyle v. Madigan, 492 F.2d 1180, 1182 (9th Cir.
1974) (citing O’Shea v. Littleton, 414 U.S. 488, 494 (1974)).
3. The district court abused its discretion by dismissing the action without
prejudice. See WPP Luxembourg Gamma Three Sarl v. Spot Runner, Inc., 655
F.3d 1039, 1048 (9th Cir. 2011) (holding that we review for abuse of discretion "a
district court’s decision to dismiss without prejudice."). The court’s only reason,
that it "ha[d] not considered the merits of this case," is contrary to law. See, e.g.,
Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981) (holding that
a "dismissal for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6) is a ‘judgment on the merits’"); accord Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211, 228 (1995).
Accordingly, we vacate the judgment’s dismissal of the action "without
prejudice" and remand with instructions to re-enter judgment "with prejudice."
AFFIRMED in part, VACATED in part, and REMANDED with
instructions. Costs on appeal awarded to Defendants-Appellants/Appellees.
5

-- 5 of 5 --