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Berger v. Home Depot USA, Inc.

United States Court of Appeals, Ninth Circuit

February 3, 2014

Benjamin BERGER, individually and on behalf of all other similarly situated and the general public, Plaintiff-Appellant,
v.
HOME DEPOT USA, INC., a Delaware Corporation, DBA The Home Depot, Defendant-Appellee.

Argued and Submitted Aug. 28, 2013.

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Taras P. Kick (argued), The Kick Law Firm, Santa Monica, CA; Thomas A. Segal, The Kick Law Firm, Los Angeles, CA, for Plaintiff-Appellant.

Allan E. Ceran, Burke, Williams & Sorenson, LLP, Los Angeles, CA; Dwight J. Davis, S. Stewart Haskins II (argued), and Jonathan R. Chally, King & Spalding LLP, Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Central District of California, S. James Otero, District Judge, Presiding. D.C. No. 8:10-cv-00678-SJO-PLA.

Before: RONALD M. GOULD and JOHNNIE B. RAWLINSON, Circuit Judges, and IVAN L.R. LEMELLE, District Judge.[*]

OPINION

GOULD, Circuit Judge:

Benjamin Berger appeals from the stipulated dismissal with prejudice of his putative class-action claims against Home Depot. He alleges that Home Depot automatically imposed a ten percent surcharge for a damage waiver on tool rentals in its California stores, and although that fee was to be optional, Home Depot's failure to inform customers of their ability to decline the surcharge was a violation of California's Unfair Competition Law, the California Consumer Legal Remedies Act, and common-law theories of unjust enrichment and money had and received. Cal. Bus. & Prof.Code § 17200; Cal. Civ.Code § 1770.[1] We have jurisdiction under 28 U.S.C. § 1291 because, in the absence of a settlement, a stipulation that leads to a dismissal with prejudice does not destroy the adversity in that judgment necessary to support an appeal. We affirm the denial of class certification because the district court did not abuse its discretion in holding that the proposed classes that Berger is capable of representing do not meet the requirement that common questions predominate over individual issues under Fed.R.Civ.P. 23(b)(3), and that was the only sub-part of Rule 23(b) on which Berger relied.

I

The District Court denied Berger's motion for class certification, concluding that

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the proposed class and subclasses were not ascertainable and that Berger did not meet the commonality, typicality, and adequacy of representation requirements of Federal Rule of Civil Procedure (" Rule" ) 23(a). Having rejected certification on grounds of ascertainability of the class and on grounds that Rule 23(a) was not satisfied, the District Court at first recited that it declined to reach the requirements of Rule 23(b)(3), but then discussed those requirements and concluded, " Accordingly, because independent issues predominate and it is not clear that class action is a superior means of adjudication, Plaintiff's Motion fails for the additional reason that he cannot satisfy the requirements of Rule 23(b)(3)."

Berger then stipulated with Home Depot to dismiss the action with prejudice, noting his intent to appeal the denial of class certification. In the stipulation, Home Depot contested his ability to appeal. The district court dismissed the action under Rule 41(a)(2), and Berger filed a timely notice of appeal.

The district court had jurisdiction over Berger's complaint under the Class Action Fairness Act, 28 U.S.C. § 1332(d), because the parties met minimal diversity and the amount in controversy exceeded $5 million. We have jurisdiction under 28 U.S.C. § 1291 because a dismissal of an action with prejudice, even when such dismissal is the product of ...


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