FILED
NOT FOR PUBLICATION MAY 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MELALEUCA, INC., No. 11-35403
Plaintiff - Appellant, D.C. No. 1:10-cv-00553-EJL
v.
MEMORANDUM *
DARYL HANSEN,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted May 14, 2013 **
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Melaleuca, Inc. appeals from the district court’s judgment dismissing its
action alleging federal and state law claims related to unsolicited and misleading
commercial spam email. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a dismissal on the basis of the doctrine of collateral estoppel. McQuillion
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
v. Schwarzenegger, 369 F.3d 1091, 1096 (9th Cir. 2004). We affirm in part, vacate
in part, and remand.
The district court properly dismissed Melaleuca’s claim under the federal
Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003
(“CAN-SPAM Act”) because the issue of whether Melaleuca had statutory
standing to bring this claim was actually litigated in a prior action between the
same parties as a critical and necessary part of the judgment in that action. See id.
(setting forth factors for collateral estoppel to apply under federal law); see also
Deutsch v. Flannery, 823 F.2d 1361, 1364 (9th Cir. 1987) (collateral estoppel can
apply to a dismissal without prejudice if the determination being given preclusive
effect was essential to the dismissal). Melaleuca’s amendments did not cure its
failure to allege that, even standing in the shoes of its assignor, it suffered the type
of harm necessary to pursue a CAN-SPAM Act claim. See Gordon v. Virtumundo,
Inc., 575 F.3d 1040, 1048, 1054 (9th Cir. 2009) (type of harm necessary to assert
CAN-SPAM Act claims excludes costs incurred by Internet access provider to take
reasonable precautions against spam as part of normal operations); see also
Deutsch, 823 F.3d at 1364-65 (where amendments in a second action render the
doctrine of issue preclusion inapplicable, they must be independently examined).
However, Melaleuca’s new assertion that the court has diversity jurisdiction
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over the action under 28 U.S.C. § 1332 was not actually litigated as a critical and
necessary part of the judgment in the prior action, and, therefore, should not be
given preclusive effect. See McQuillion, 369 F.3d at 1096. Accordingly, we
vacate only the district court’s conclusion that its decision in the prior action to
deny Melaleuca leave to allege diversity jurisdiction has preclusive effect on the
court’s consideration of whether Melaleuca properly invoked diversity jurisdiction
over its state law claims in the present action. On remand, the parties should
address whether Melaleuca has asserted good faith damages in excess of the
federal amount-in-controversy, including based on statutorily available attorney’s
fees under state law claims to the extent that such claims are not preempted. See
Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 998, 1000 (9th Cir. 2007)
(explaining different tests that apply to evaluating the amount-in-controversy
requirement depending on whether the plaintiff alleges a damages amount, and
when statutory attorney’s fees can be included in the jurisdictional minimum); see
also Gordon, 575 F.3d at 1054-64 (discussing when state law claims are preempted
under the CAN-SPAM Act).
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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