SETH BAKER; MATTHEW DANZIG; JAMES JARRETT; NATHAN MARLOW; MARK RISK, individually and on behalf of all others similarly situated, Plaintiffs-Appellants,
MICROSOFT CORPORATION, a Washington Corporation, Defendant-Appellee
Argued and Submitted April 7, 2014
Appeal from the United States District Court for the
Western District of Washington. D.C. No. 2:11-cv-00722-RSM. Ricardo S. Martinez,
District Judge, Presiding.
The slip opinion dated March 18, 2015 is hereby amended as follows:
Page 11 - insert the following footnote at the end of the first paragraph:
Our decision in Huey v. Teledyne, Inc., 608 F.2d 1234 (9th Cir. 1979), is not to the contrary. There, putative class plaintiff Huey's motion for class certification was denied in the district court. Id. at 1236. Subsequently, Huey's individual action was called for trial, but Huey made no appearance; accordingly, the district court dismissed Huey's action for want of prosecution. Id. Huey attempted to appeal the denial of class certification, but this court explained that it lacked jurisdiction over the appeal. We explained that the strong policy of giving trial judges the ability " to achieve the orderly and expeditious disposition of cases" meant that plaintiffs who had failed to prosecute their claims lost the ability to appeal the denial of class certification. Id. at 1239 (quoting Sullivan v. Pacific Indem. Co., 566 F.2d 444, 445-46 (3rd Cir. 1977)).
However, Huey does not control here. Unlike that proceeding, Baker did not fail to appear before the district court after the class action allegations were struck. In fact, Baker stipulated to dismiss his individual claim, giving up a valuable right in the process. Our cases recognize that a stipulated dismissal of an individual claim is an adverse and appealable final judgment, Berger, 741 F.3d at 1065, as does a leading treatise. See 7B Charles Allan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure § 1802 (3d ed. 2005).
With this amendment, Judges Rawlinson and Bea voted, and Judge Hawkins recommended, to deny the Petition for En Banc Rehearing.
The full court has been advised of the Petition for En Banc Rehearing, and no judge of the court has requested a vote.
Microsoft Corporation's Petition for En Banc Rehearing, filed on April 1, 2015, is DENIED. No further petitions for rehearing or rehearing en banc will be accepted.
The panel reversed the district court's stipulated dismissal and order striking class allegations in a diversity action brought by a putative class of owners of Microsoft Corporation's Xbox 360 video game console.
The putative class alleged a design defect in the Xbox console that gouged game discs. In striking the class allegations, the district court concluded that comity required deferral to an earlier class certification denial from another district court decision involving a similar putative class.
The panel held that there was jurisdiction under 28 U.S.C. § 1291 to hear the appeal because the district court's dismissal of the action with prejudice was a sufficiently adverse, and appealable, final decision, even though the dismissal was the product of a stipulation. The panel also held that the decision in Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1173 (9th Cir. 2010) (rejecting the notion that individual manifestations of a defect precluded resolution of the claims on a class-wide basis), was controlling, and the district court's decision ...