FILED
NOT FOR PUBLICATION FEB 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STEVEN BITTER, individual and on No. 11-56057
behalf of a class of others similarly
situated, D.C. No. 2:11-cv-01736-PA-VBK
Plaintiff - Appellant,
MEMORANDUM *
v.
RADIOSHACK CORP., a Delaware
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted February 8, 2013 **
Pasadena, California
Before: CALLAHAN, IKUTA, and HURWITZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiff Steve Bitter appeals the district court’s order staying this putative
class action pursuant to the Colorado River doctrine. See Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). We have
jurisdiction under 28 U.S.C. § 1291, Nakash v. Marciano, 882 F.2d 1411, 1413
(9th Cir. 1989), and we affirm.
The district court did not abuse its discretion in ruling that the state court
plaintiff’s pursuit of mediation did not reflect a lack of diligence or suggest that the
state proceeding was inadequate. Nor did the district court err in concluding that
the threat of piecemeal litigation weighed in favor of granting a stay because,
contrary to Bitter’s argument, certification of a federal class would not have
terminated the parallel state court action. Negrete v. Allianz Life Ins. Co. of N. Am.,
523 F.3d 1091, 1100 (9th Cir. 2008).
We also reject Bitter’s contention that the district court erred in failing to
consider Federal Rule of Civil Procedure 23 in applying the Colorado River
doctrine. Rule 23 governs the procedure for maintaining a federal action on behalf
of a class, Fed. R. Civ. P. 23. It does not apply to the antecedent question of
whether a district court should stay the federal action in deference to a parallel state
court action. In any event, the Colorado River doctrine already takes into account
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Rule 23’s concerns about fairness, adequacy, and efficiency. See Fed. R. Civ. P.
23(a)(4), (b)(3); Marciano, 882 F.2d at 1415.
We grant Bitter’s request, filed February 13, 2012, that this court take
judicial notice of the Los Angeles Superior Court’s case summary of the parallel
state court action.
AFFIRMED.
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