Payne v. Office of the Commissioner of Baseball

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NOT FOR PUBLICATION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.

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