FILED
NOT FOR PUBLICATION DEC 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LAURA KROTTNER and ISHAYA No. 09-35823
SHAMASA, individually and on behalf of
all others similarly situated, D.C. No. 2:09-cv-00216-RAJ
Plaintiffs - Appellants,
MEMORANDUM *
v.
STARBUCKS CORPORATION, a
Washington Corporation,
Defendant - Appellee.
JOSEPH LALLI, individually and on No. 09-35824
behalf of all others similarly situated,
D.C. No. 2:09-cv-00389-RAJ
Plaintiff - Appellant,
v.
STARBUCKS CORPORATION, a
Washington Corporation,
Defendant - Appellee.
Appeal from the United States District Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted October 6, 2010
Seattle, Washington
Before: KOZINSKI, Chief Judge, and THOMAS and M. SMITH, Circuit Judges.
Because the parties are familiar with the factual and procedural history of
this case, we do not recount additional facts except as necessary to explain the
decision. We have jurisdiction under 28 U.S.C. § 1291. In a separate opinion, we
hold that Plaintiffs-Appellants have standing to bring this suit under Article III of
the Constitution. Here, we hold that Plaintiffs-Appellants did not adequately allege
the elements of their state-law claims, and that certification is unnecessary. We
affirm.
As an initial matter, our holding that Plaintiffs-Appellants pled an injury-in-
fact for purposes of Article III standing does not establish that they adequately pled
damages for purposes of their state-law claims. See Doe v. Chao, 540 U.S. 614,
624-25 (2004) (explaining that an individual may suffer Article III injury and yet
fail to plead a proper cause of action). Rather, Plaintiffs-Appellants must allege
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). They have not done so here.
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First, Plaintiffs-Appellants have not established a cognizable injury for
purposes of their negligence claim. Under Washington law, “[a]ctual loss or
damage is an essential element in the formulation of the traditional elements
necessary for a cause of action in negligence . . . . The mere danger of future harm,
unaccompanied by present damage, will not support a negligence action.” Gazija
v. Nicholas Jerns Co., 543 P.2d 338, 341 (Wash. 1975). The alleged injuries here
stem from the danger of future harm. Even Shamasa, the only plaintiff who claims
his personal information has been misused, alleges no loss related to the attempt to
open a bank account in his name. And Plaintiffs-Appellants have waived any
argument that Lalli’s alleged anxiety constitutes an actionable injury, as they did
not properly raise it in their opening brief before us. See Rattlesnake Coal. v. EPA,
509 F.3d 1095, 1100 (9th Cir. 2007). We therefore affirm the dismissal of their
negligence claim.
Second, Plaintiffs-Appellants have not adequately alleged the existence of
an implied contract under Washington law.1 “Before a court can find the existence
of an implied contract in fact, there must be an offer; there must be an acceptance;
1
The district court dismissed this claim for failure to adequately allege a
cognizable injury. However, “[w]e may affirm on any basis supported by the
record, whether or not relied upon by the district court.” Hall v. N. Am. Van Lines,
Inc., 476 F.3d 683, 686 (9th Cir. 2007).
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the acceptance must be in the terms of the offer; it must be communicated to the
offeror; there must be a mutual intention to contract; [and] there must be a meeting
of the minds of the parties.” Milone & Tucci, Inc. v. Bona Fide Builders, Inc., 301
P.2d 759, 762 (Wash. 1956) (citation omitted). Plaintiffs-Appellants point to three
documents they claim formed an implied contract, but they do not allege that they
read or even saw the documents, or that they understood them as an offer. Nor do
they allege that they accepted the purported offer on its terms. To the contrary,
Plaintiffs-Appellants assert that they accepted a specific offer to encrypt and
otherwise safeguard their personal data even though the documents include no such
terms and only generally discuss access to confidential information. Plaintiffs-
Appellants therefore have not adequately pled the existence of an implied contract
under Washington law.
Because the elements of negligence and breach of contract claims are
sufficiently clear under Washington law, there is no need to certify a question to
the Washington Supreme Court. See City of Houston, Tex. v. Hill, 482 U.S. 451,
471 (1987) (“It would be manifestly inappropriate to certify a question in a case
where, as here, there is no uncertain question of state law whose resolution might
affect the pending federal claim.”). Because we hold that Plaintiffs-Appellants
failed sufficiently to allege the elements of their claims, we need not address
4
whether credit monitoring is an available remedy or whether the economic-loss
rule bars economic damages for purposes of the negligence claims.
AFFIRMED.
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