Nathan Riensche v. Cingular Wireless LLC , 496 F. App'x 760 ( 2012 )

FILED
NOT FOR PUBLICATION OCT 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATHAN RIENSCHE, individually and No. 09-35987
on behalf of all the members of the class of
persons similarly situated, D.C. No. 2:06-cv-01325-TSZ
Plaintiff - Appellant,
v.
CINGULAR WIRELESS, LLC, a
Delaware limited liability company doing
business as Cingular Wireless; et al.,
Defendants - Appellees.
JARED PECK, No. 09-36113
Plaintiff, D.C. No. 2:09-cv-00106-TSZ
and
MEMORANDUM*
JAMES BOWDEN, a Washington
resident, individually and on behalf of all
the members of the class of persons
similarly situated,
Plaintiff - Appellant,
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
AT&T MOBILITY, LLC, a Delaware
limited liability company doing business
as Cingular Wireless, AKA Cingular
Wireless, LLC; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Submitted May 7, 2012**
Seattle, Washington
Before: FISHER, N.R. SMITH, and MURGUIA, Circuit Judges.
Plaintiffs Riensche and Bowden (hereinafter referred to collectively as
“Plaintiffs”) are named plaintiffs in separate putative class action lawsuits, which
were combined for this appeal. Plaintiffs appeal the district court’s grant of
summary judgment in favor of Cingular Wireless, LLC (“Cingular”). We certified
to the Washington Supreme Court the question of whether Section 82.04.500 of the
Washington Revised Code allows a seller to recoup its business and occupation
**
Case No. 09-35987 was argued and submitted on July 13, 2010. On
July 19, 2010, it was withdrawn from submission, pending final submission of
briefing in Case No. 09-36113. The panel unanimously concluded Case No. 09-
36113 was suitable for decision without oral argument, see Fed. R. App. P.
34(a)(2), and both cases were ordered submitted as of May 7, 2012.
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(“B&O”) tax by collecting a surcharge from consumers in addition to the monthly
service fee. The Washington Supreme Court accepted the question and held that a
business was not allowed to pass along the tax as a separate surcharge in addition
to the sales price; any taxes must be incorporated into the final sales price. In the
consolidated appeal before us, Cingular now argues that the Washington Supreme
Court’s decision is preempted by federal law, and even if it is not, that Plaintiffs
have no remedy for Cingular’s violation of Section 82.04.500. We have
jurisdiction under 28 U.S.C. § 1291. Based on the Washington Supreme Court’s
decision, we reverse the ruling of the district court.
1. Section 82.04.500 of Washington’s Revised Code is not preempted by
Section 332(c)(3)(A) of the Federal Communications Act (FCA). Section
332(c)(3)(A) of the FCA states that “no State or local government shall have any
authority to regulate the entry of or the rates charged by any commercial mobile
service or any private mobile service[.]” 47 U.S.C. § 332(c)(3)(A). However, this
restraint “shall not prohibit a State from regulating the other terms and conditions
of commercial mobile services.” Id. In Peck v. Cingular Wireless, LLC, 535 F.3d
1053, 1057-58 (9th Cir. 2008), we held that Section 82.04.500 of Washington’s
Revised Code regulates an other term or condition rather than a rate because it
“simply structures the contract’s negotiation and disclosure, mandating that
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businesses quote all prices inclusive of Washington’s B & O Tax.” That result
governs this case. Because Section 82.04.500 of Washington’s Revised Code
regulates an other term and condition, it is not preempted under the FCA.
2. Plaintiffs are entitled to recover under Washington’s Consumer
Protection Act (CPA). The CPA allows a consumer to recover in a private right of
action if the party can show that a business has: 1) engaged in an unfair or
deceptive act or practice; 2) in trade or commerce; 3) involving a public interest; 4)
causing injury to the plaintiff, plaintiff’s business, or plaintiff’s property; and 5) a
causal link exists between the unfair or deceptive practice and the plaintiff’s injury.
Indoor Billboard/Washington, Inc. v. Integra Telecom of Wash., Inc., 170 P.3d 10,
17 (Wash. 2007) (en banc). The only two prongs disputed in this appeal are the
first and last.
To prove an unfair or deceptive act under the CPA, “[n]either intent to
deceive nor actual deception is required.” Dwyer v. J.I. Kislak Mortg. Corp., 13
P.3d 240, 243 (Wash. Ct. App. 2000). Instead, the act “need only have ‘the
capacity to deceive a substantial portion of the public.’” Indoor
Billboard/Washington, Inc., 170 P.3d at 18 (citing Hangman Ridge Training
Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 535 (1986) (en banc)). The
presence of Cingular’s line-item surcharge on customer bills had the capacity to
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deceive a substantial portion of the public into thinking that the surcharge was
legally permissible or even mandated by the government. See id. at 19 (“The use
of the term PICC had the capacity to deceive a substantial portion of the public into
thinking the surcharge was FCC regulated and required.”).
Causation is also met in this case. But for Cingular’s line-item surcharge,
Plaintiffs would not have paid the additional amount covering the B&O tax. Thus,
causation is satisfied. See Panag v. Farmers Ins. Co. of Wash., 204 P.3d 885, 902
(Wash. 2009) (en banc). Because we find that Plaintiffs have demonstrated an
unfair or deceptive act or practice and causation as a matter of law, we REVERSE
and REMAND this claim to the district court for further proceedings consistent
with this order.1
3. We decline Plaintiffs’ request to remand the case to state court because
we find that the notice of removal was timely filed within thirty days of the filing
of the amended complaint, which is the date Cingular could have first ascertained
that the case had become removable. See 28 U.S.C. § 1446(b)(3).
1
As an alternative to recovering damages under the CPA, Plaintiffs argue
they are entitled to relief under an implied right of action, the doctrine of unjust
enrichment, or Washington’s Uniform Declaratory Judgment Act. Bowden Supp.
Br. 2; Riensche Supp. Br. 2. Because we reverse on Plaintiffs’ CPA claim, we do
not address these other arguments.
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4. We also decline to reassign the case on remand to a different district
judge, because Plaintiffs have not shown that Judge Zilly would have substantial
difficulty in setting aside previously-expressed views found to be erroneous. See
Living Designs, Inc. v. E.I. Dupont de Nemours and Co., 431 F.3d 353, 372 (9th
Cir. 2005). Moreover, reassignment is not necessary to preserve the interest of
justice, and reassignment would entail a substantial waste of judicial resources.
See id. at 372-73.
REVERSED AND REMANDED.
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