RENTBERRY, INC., a Delaware corporation; DELANEY WYSINGLE, an individual v. CITY OF SEATTLE, a Washington municipal corporation

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RENTBERRY, INC., a Delaware
corporation; DELANEY WYSINGLE, an
individual,

Plaintiffs-Appellants,

v.

CITY OF SEATTLE, a Washington
municipal corporation,

Defendant-Appellee.

No. 19-35308

D.C. No. 2:18-cv-00743-RAJ

ORDER
*

Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding

Submission Deferred March 4, 2020
**

Submitted July 29, 2020
Seattle, Washington

Before: IKUTA, R. NELSON, and HUNSAKER, Circuit Judges.

After reviewing the parties’ supplemental briefing on mootness, we
conclude this case is moot.

*
This order is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

JUL 30 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
First, Appellants have not met their burden of showing a “reasonable
expectation” that Seattle will enact a same or similar ordinance in the future. See
Bd. of Trs. of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 1199
(9th Cir. 2019) (en banc). Neither the language of the repeal ordinance nor
Appellee’s efforts to gather data on the impact of rent-bidding platforms are
sufficient to overcome the presumption that “the government is acting in good
faith” when it voluntarily ceases challenged activity. See Am. Cargo Transp., Inc.
v. United States, 625 F.3d 1176, 1180 (9th Cir. 2010).
Second, while “[a] live claim for nominal damages will prevent dismissal for
mootness,” Bernhardt v. County of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002),
Appellants’ last-minute request for nominal damages is not live because it was not
raised before the district court. Their inclusion of a catch-all request for “such
additional relief as may be just and proper” in the complaint does not allow
Appellants to now attempt to “wrest a claim for nominal damages from [this]
general prayer for relief for the first time on appeal.” Bain v. Cal. Teachers Ass’n,
891 F.3d 1206, 1213–14 (9th Cir. 2018) (quoting Bayer v. Neiman Marcus Grp.,
Inc., 861 F.3d 853, 869 (9th Cir. 2017)).
Because there is no “change in the legal framework governing the case” and
Appellants do not have a “residual claim . . . that was understandably not asserted
previously,” N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct.

3
1525, 1526 (2020) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 482–483
(1990)), we vacate the district court’s judgment and remand with an instruction to
dismiss this case as moot.
VACATED AND REMANDED.