Alloure, Inc. v. Fa Cooeprative, Inc. , 438 F. App'x 571 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALLOURE, INC., a California No. 10-55080
corporation,
D.C. No. 8:08-cv-00614-DOC-
Plaintiff - Appellant, RNB
and
MEMORANDUM *
JALAL ALLEN MONSHIETEHADI, an
individual; ARMAN VAKILI, an
individual,
Plaintiffs,
v.
FA COOPERATIVE, INC., a Missouri
corporation, DBA Flooring America,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted June 9, 2011 **
Pasadena, California
Before: BEEZER, TROTT, and RYMER, Circuit Judges.
Alloure, Inc. appeals the district court’s grant of summary judgment to FA
Cooperative, Inc. (FAC). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
As an initial matter, FAC has waived any argument that this action is barred
by res judicata by failing to raise it in district court. Rotec Indus., Inc. v.
Mitsubishi Corp., 348 F.3d 1116, 1119 (9th Cir. 2003). FAC’s strategic choice to
avoid raising res judicata in district court does not constitute an extraordinary
circumstance that justifies pursuing it for the first time on appeal. Id.Turning to Alloure’s arguments, whether the FAC bylaws required it to
exhaust FAC’s internal remedies before bringing suit is waived. Alloure
acknowledges that this argument was not expressly presented to the district court.
In fact, its position presumed the opposite interpretation of the bylaws. We do not
consider an argument on appeal that was not “raised sufficiently for the [district]
court to rule on it.” O’Rourke v. Seaboard Surety Co. (In re E.R. Fegert, Inc.), 887
F.2d 955, 957 (9th Cir. 1989).
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Alloure’s arguments that exhaustion was excused are also waived. Alloure
did not raise in district court the issue of whether the appeal hearing was futile
because its business had already been destroyed. Instead, it argued the hearing was
futile because it had no chance to prevail due to the hostility of the hearing
committee. The ostensibly similar argument Alloure made in response to FAC’s
writ of mandate argument concerned inadequacy of remedy instead of futility, and
was made in response to a different basis for summary judgment. In any event, the
argument fails because the futility exception applies when a party “can positively
state that the agency has declared what its ruling will be on a particular case,” not
when some harm has already befallen the party. Jonathan Neil & Assocs., Inc. v.
Jones, 94 P.3d 1055, 1067 (Cal. 2004) (internal quotation marks and alteration
omitted).
Alloure also did not raise in district court its argument that exhaustion is
excused because the hearing committee could not grant the appropriate relief of
damages. Nor did it raise whether the committee lacked jurisdiction. The closest it
came was arguing that a writ of mandate was not required because the committee
possessed no particular expertise. This is merely a subset of the appropriate relief
argument Alloure now advances, and it was raised in response to a different basis
for summary judgment. Regardless, the argument fails because exhaustion is
required even if the private remedies do not include damages. Westlake Cmty.
Hosp. v. Super. Ct., 551 P.2d 410, 415-16 (Cal. 1976). The policy considerations
in support of this rule are furthered by requiring exhaustion here: Alloure’s
participation would have given FAC more opportunity to minimize any damages,
the committee has expertise in the matters central to this dispute, and the record for
the district court would have been more developed had Alloure participated in the
hearing. See id.AFFIRMED.