S. Mendel v. Liane Randolph ( 2022 )

FILED
NOT FOR PUBLICATION
JUL 7 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
S. PATRICK MENDEL, No. 21-15910
Plaintiff-Appellant, D.C. No. 4:19-cv-03244-JST
v.
MEMORANDUM*
LIANE RANDOLPH, in her individual
and official capacity as Commissioner,
California Public Utilities Commission;
CLIFFORD RECHTSCHFFEN, in his
indiviual and official capacity as
Commissioner, California Public Utilities
Commission; MARTHA GUZMAN
ACEVES, in her individual and official
capacity as Commissioner, California
Public Utilities Commission; MARITZA
PEREZ, in her individual and official
capacity as Section Supervisor Badge #11
Transportationb License Section California
Public Utilities Commission;
CALIFORNIA PUBLIC UTILITIES
COMMISSION; UBER
TECHNOLOGIES, INC.; RAISER-CA
LLC; UBER USA, LLC; TRAVIS
KALANICK, Board Member, former
CEO; CITY AND COUNTY OF SAN
FRANCISCO; LICHTEN & LISS-
RIORDAN P.C., a law firm; SHANNON
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
LISS-RIORDAN, Attorney of the law firm
Lichten & Liss-Riordan, PC; ADELAIDE
PAGANO, Attorney of the law form
Lichten & Liss-Riordan, P.C.; ANNE
KRAMER, Attorney of the law firm
Lichten & Liss-Riordan, P.C.,
Defendants-Appellees,
and
ELAINE L. CHAO, in her official capacity
as U.S. Secretary of Transportation;
XAVIER BECERRA, in his official
capacity as Attorney General of the State
of California; RAYMOND MARTINEZ,
in his official capacity as Adminisrator,
Federal Motor Carrier Safety
Administration; LORETTA BITNER, in
her official capacity as Chief, Office of
Enforcement and Compliance, Federal
Motor Carrier Safety Administration;
MICHAEL PICKER, in his individual and
official capacity as President,
Commissioner, California Public Utilities
Commission; CARLA J. PETERMAN, in
her individual and Official Capacity as
Commissioner, California Public Utilities
Commission; GARRETT CAMP, Board
Member and Founder; RYAN GRAVES,
Board Member, former CEO; LYFT, INC.;
LOGAN GREEN, CEO of Lyft and Board
Member; JOHN ZIMMER, President of
Lyft and Board Member; WILLIAM P.
BARR, Attorney General; SIDNEY R.
THOMAS, Chief United States Circuit
Judge of the United States Court of
Appeals for the Ninth Circuit, in his
2
individual and official Administrative
capacity; PHYLLIS J. HAMILTON, Chief
District Judge, in her individual and
official Administrative Capacity ofthe
United States District Court of the
Northern District of California; JOSEPH J.
SIMONS, in his official capacity as
Chairman, Federal Trade Commission,
Defendants.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Submitted July 6, 2022 **
San Francisco, California
Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.
Plaintiff S. Patrick Mendel appeals pro se from the district court’s order
dismissing with prejudice his civil action against the Uber Defendants,1 the
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
1
Uber Technologies, Inc. (Uber); Rasier-CA, LLC; Uber USA, LLC; Travis
Kalanick; Garrett Camp; Ryan Graves; Derek Anthony West; Scott Schools.
3
California Public Utilities Commission (CPUC) Defendants,2 the City Defendants,3
and the LLR Defendants.4 Mendel alleged a variety of federal claims arising from
the purported unlawfulness of the Uber Defendants’ ridesharing business model
and certain taxes, permits, and fees required by local authorities. We review de
novo,5 and we affirm.
The district court properly dismissed Mendel’s federal claims against the
Uber Defendants because they were barred by res judicata arising from the
judgment in Overton v. Uber Technologies, Inc., 333 F. Supp. 3d 927, 952 (N.D.
Cal. 2018). See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 322
F.3d 1064, 1077–78 (9th Cir. 2003). Mendel’s claims that Uber was violating
federal motor carrier and antitrust laws were “based on the same nucleus of facts”
as the claims adjudicated in Overton. Tahoe-Sierra, 322 F.3d at 1078.
2
Marybel Batjer; Martha Guzman Aceves; Liane M. Randolph; Clifford
Rechtscheffen; Genevieve Shiroma; Michael Picker; Carla Peterman; Maritza
Perez.
3
City and County of San Francisco and Ivar C. Satero.
4
Shannon Liss-Riordan; Adelaide Pagano; Anne Kramer; Lichten & Liss-
Riordan P.C.
5
Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (res judicata);
Gingery v. City of Glendale, 831 F.3d 1222, 1226 (9th Cir. 2016) (failure to state a
claim); Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1050 (9th Cir. 2008) (issue
preclusion).
4
The district court also properly dismissed Mendel’s claims against the
CPUC Defendants as barred by res judicata arising from the Overton judgment.
Both suits alleged that certain CPUC programs and fees violated federal law, and
those claims were already rejected by Overton. 333 F. Supp. 3d at 935–36,
938–42; see Tahoe-Sierra, 322 F.3d at 1077–78. That Mendel’s permit was
suspended for non-payment of fees after the Overton judgment was rendered is
simply a new alleged damage from the supposedly-unlawful earlier conduct and
does not defeat the application of res judicata. See Int’l Techs. Consultants, Inc. v.
Pilkington PLC, 137 F.3d 1382, 1388–89 (9th Cir. 1998); cf. Lawlor v. Nat’l
Screen Serv. Corp., 349 U.S. 322, 327–28, 75 S. Ct. 865, 868–69, 99 L. Ed. 1122(1955) (new antitrust violations were committed after prior judgment).
The district court properly dismissed Mendel’s claims against the City
Defendants for failing to state cognizable claims. See Fed. R. Civ. P. 12(b)(6).
Mendel did not adequately plead that federal laws regulating interstate commerce
or transportation between states apply to the transportation services he provides.
See U.S. Const. art. I, § 8, cl. 3; 49 U.S.C. §§ 14501(d)(1), 14505; United States v.
Yellow Cab Co., 332 U.S. 218, 230–32, 67 S. Ct. 1560, 1566–67, 91 L. Ed. 2010(1947), overruled on other grounds by Copperweld Corp. v. Indep. Tube Corp.,
467 U.S. 752, 759–60, 104 S. Ct. 2731, 2735–36, 81 L. Ed. 2d 628 (1984);
5
Capriole v. Uber Techs., Inc., 7 F.4th 854, 863–64 (9th Cir. 2021); see also Altria
Grp., Inc. v. Good, 555 U.S. 70, 76–77, 129 S. Ct. 538, 543, 172 L. Ed. 2d 398(2008) (preemptive scope of federal law); Rocky Mountain Farmers Union v.
Corey, 730 F.3d 1070, 1087–88 (9th Cir. 2013) (dormant Commerce Clause);
Alamo Rent-A-Car, Inc. v. City of Palm Springs, 955 F.2d 30, 30–31 (9th Cir.
1991) (per curiam) (airport access fee schedule did not discriminate against
interstate commerce).
The district court also properly dismissed Mendel’s California breach of
fiduciary duty claim against the LLR Defendants. See Stanley v. Richmond, 41
Cal. Rptr. 2d 768, 776 (Ct. App. 1995). Mendel’s claim premised on the LLR
Defendants’ conduct in O’Connor v. Uber Technologies, Inc., No. 13-cv-03826-
EMC, 2019 WL 4394401, at *4–6 (N.D. Cal. Sept. 13, 2019), was barred by issue
preclusion because the district court there had overruled Mendel’s objections to
that settlement and determined that counsel’s representation of the class had been
adequate. See Kendall, 518 F.3d at 1050; Golden v. Pac. Mar. Ass’n, 786 F.2d
1425, 1427–28, 1429 (9th Cir. 1986). The allegations of Mendel’s complaint were
wholly insufficient to state any claim premised on the LLR Defendants’ purported
violations of their duties to unspecified class action claimants in other unspecified
cases.
6
We do not consider arguments raised for the first time on appeal or matters
not specifically and distinctly raised and argued in the opening brief. See Padgett
v. Wright, 587 F.3d 983, 985 & n.2 (9th Cir. 2009) (per curiam); Greenwood v.
FAA, 28 F.3d 971, 977 (9th Cir. 1994).
AFFIRMED. All pending motions are DENIED.
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