FILED
NOT FOR PUBLICATION
DEC 08 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAIL PAYNE and STEPHANIE SMITH, No. 16-17131
individually and on behalf of all others
similarly situated, D.C. No. 4:15-cv-03229-YGR
Plaintiffs-Appellants,
MEMORANDUM*
v.
OFFICE OF THE COMMISSIONER OF
BASEBALL, DBA Major League
Baseball; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted December 6, 2017**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: M. SMITH and IKUTA, Circuit Judges, and MCAULIFFE,*** District
Judge.
Gail Payne and Stephanie Smith appeal the district court’s order dismissing
Payne and Smith’s class action complaint for lack of standing. We have
jurisdiction under 28 U.S.C. § 1291.
The district court did not err in concluding that Smith and Payne failed to
demonstrate the injury-in-fact element of Article III standing. Smith cannot
demonstrate a “certainly impending” or “substantial risk” of future injury from a
foul ball, Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (citation
omitted), because she does not plan to attend any future ball game unless she is
sitting in a location that is screened by a net, see Lujan v. Defs. of Wildlife, 504
U.S. 555, 563–64 (1992). Although Payne plans to attend future games, her
chance of being hit by a foul ball in her chosen sections is roughly 0.0027% per
game. Payne has not offered evidence or statistical analysis indicating she faces a
significantly greater likelihood of injury than 0.0027%, let alone that she faces a
“certainly impending” injury. Susan B. Anthony List, 134 S. Ct. at 2341. We also
reject Payne and Smith’s argument that their general anxiety about being injured
by foul balls constitutes an injury-in-fact, because it is based on “fears of
***
The Honorable Steven J. McAuliffe, United States District Judge for
the District of New Hampshire, sitting by designation.
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hypothetical future harm that is not certainly impending.” Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 416 (2013); see also Munns v. Kerry, 782 F.3d 402, 411 (9th
Cir. 2015).
Finally, we reject Smith and Payne’s argument that inadequate safety
precautions at baseball games interfere with their recreational use of their baseball
tickets, and such interference constitutes an injury-in-fact. A person does not
suffer “an invasion of a legally protected interest” solely because the owner of a
facility open to the public has failed to implement a particular safety measure.
Lujan, 504 U.S. at 560. Cases concerning individuals’ use of public natural
resources that are threatened by business operations, see Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 182–83 (2000), are inapposite
and therefore insufficient to meet the plaintiffs’ burden to show they have standing,
see Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
AFFIRMED.
3