NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDALL CHILDRESS; CLAUDIA No. 19-35441
CHILDRESS,
D.C. No. 9:18-cv-00183-DWM
Plaintiffs-Appellees,
v. MEMORANDUM*
COSTCO WHOLESALE CORPORATION,
Defendant-Appellant.
RANDALL CHILDRESS; CLAUDIA No. 19-35493
CHILDRESS,
D.C. No. 9:18-cv-00183-DWM
Plaintiffs-Appellants,
v.
COSTCO WHOLESALE CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted September 4, 2020
Submission Vacated October 19, 2020
Resubmitted October 22, 2021
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: BYBEE and COLLINS, Circuit Judges, and SOTO,** District Judge.
After hearing oral argument, we certified the following question, an issue of
first impression under Montana law and dispositive of the instant case, to the
Montana Supreme Court:
Whether, under Montana law, parasitic emotional distress damages
are available for an underlying negligence claim for personal property
damage or loss?
Childress v. Costco Wholesale Corp., 978 F.3d 664, 668 (9th Cir. 2020) (citing
Mont. R. App. P. 15(6)(a)(iii)).
The Montana Supreme Court graciously accepted our certification request,
Childress v. Costco Wholesale Corp., No. OP 20-0526, 2020 WL 6482116 (Mont.
Nov. 4, 2020), and then answered our certified question, without modification and
on the facts and procedural history provided in our certification order. Childress v.
Costco Wholesale Corp., 493 P.3d 314 (Mont. 2021). The Supreme Court
answered the question in the negative, explaining:
[The] Childresses did not establish the basis for parasitic emotional
distress damages we approved in Maloney, where plaintiffs proved “a
subjective relationship with the property on a ‘personal-identity’
level.” Nothing in the facts provided to this Court indicate that the
handgun was an heirloom, nor were the house keys, documents, or
ammunition so intrinsically intertwined with the Childress family
dynamic that without these articles their “personal identity” would be
**
The Honorable James Alan Soto, United States District Judge for the
District of Arizona, sitting by designation.
2 19-35441
irreparably impacted. Rather, under the facts as provided, the
Childresses were deprived of fungible property whose value is derived
from its utility, not for its intrinsic value.
Id. at 318 (citations omitted). Because the Childresses are not entitled to parasitic
emotional distress damages for their underlying negligence claim, the Supreme
Court’s decision requires a resolution in Costco’s favor.
Accordingly, the award of $62,750 in “unspecified, non-property damages”
on the Childresses negligence claim is VACATED. 1 This matter is remanded to
the District Court for further proceedings consistent with this Memorandum.
1
The parties raised several other issues on appeal. However, because the
“unspecified, non-property damages” award is vacated, those issues are moot and
we decline to reach them.
3 19-35441