NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIDE THE DUCKS SEATTLE LLC, No. 20-35854
Plaintiff-Appellant, D.C. No. 2:19-cv-01408-MJP
v.
MEMORANDUM*
RIDE THE DUCKS INTERNATIONAL,
LLC; CHRIS HERSCHEND; JANE DOE
HERSCHEND; HERSCHEND FAMILY
ENTERTAINMENT CORPORATION,
Defendants-Appellees.
RIDE THE DUCKS SEATTLE LLC, No. 20-35906
Plaintiff-Appellee, D.C. No. 2:19-cv-01408-MJP
v.
RIDE THE DUCKS INTERNATIONAL,
LLC; CHRIS HERSCHEND; JANE DOE
HERSCHEND; HERSCHEND FAMILY
ENTERTAINMENT CORPORATION,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted December 10, 2021
Seattle, Washington
Before: McKEOWN, MILLER, and BADE, Circuit Judges.
Ride the Ducks Seattle, LLC (Seattle) purchased amphibious tourist
vehicles called “duck boats” from Ride the Ducks International, LLC
(International). Following a deadly crash of one of the vehicles operated by Seattle
in September 2015, Seattle and International began to wind down their business
relationship. In a 2018 agreement (the Waiver Agreement), both parties agreed to
“waive and release all rights and claims against each other to be protected,
defended, indemnified, and held harmless from any and all claims, demands,
actions, or causes of action arising from or relating in any way to the accident on
September 24, 2015.”
The agreement notwithstanding, Seattle filed a complaint in Washington
state court asserting a single claim under the Washington Consumer Protection Act
(CPA) against International; two of International’s directors, Chris and Jane Doe
Herschend; and International’s parent company, Herschend Family Entertainment
Corporation. International removed the case to federal court and asserted a
counterclaim alleging that Seattle had violated the CPA. The case was then
consolidated with a separate action, in which International alleged a CPA claim
against Seattle’s CEO, Brian Tracey.
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The district court granted summary judgment on two alternative grounds. It
first held that the Waiver Agreement released all claims the parties had against one
another relating to the crash. It also held that the alleged deceptive acts were not of
the kind “likely to mislead a ‘reasonable’ or ‘ordinary’ consumer,” and thus did not
give rise to claims under the CPA. Seattle appeals, and International cross-appeals.
We have jurisdiction under 28 U.S.C. § 1291, and we reverse in part, dismiss in
part, and remand for further proceedings.
1. The district court concluded that the Waiver Agreement “insulates
both sides from all further claims arising out of the September 2015 accident.” But
the language of the Agreement is not broad enough to support that reading. The
parties agreed to release all rights and claims to be indemnified against each other
from “any and all claims, demands, actions, or causes of action arising from or
relating in any way to” the crash. Seattle claims that it suffered harm to its business
and property due to International’s allegedly deceptive conduct. International
claims that Seattle caused it to suffer “lost reputation” that resulted in economic
losses. Those are themselves claims arising from or relating to the crash; they are
not claims for indemnification from claims arising from or relating to the crash. Cf.
Central Wash. Refrigeration, Inc. v. Barbee, 946 P.2d 760, 764 (Wash. 1997)
(“Indemnity actions are distinct, separate causes of action from the underlying
wrong . . . .”). Accordingly, the parties did not waive those claims in the Waiver
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Agreement.
The district court also granted summary judgment on the CPA claim because
the relevant conduct did not have the capacity to deceive “a substantial portion of
the public,” thus defeating the first element of the CPA claim. See Young v. Toyota
Motor Sales, U.S.A., 472 P.3d 990, 993–94 (Wash. 2020). But International did not
raise that theory in its motion for summary judgment, and Seattle had no
opportunity to submit evidence or to brief the issue. Although “whether [an act]
had the capacity to deceive a substantial portion of the public” is a “question of
law,” State v. LA Inv’rs, LLC, 410 P.3d 1183, 1193 (Wash. Ct. App. 2018), the
district court erred in granting summary judgment sua sponte before giving the
parties “notice and a reasonable time to respond.” Fed. R. Civ. P. 56(f).
Additionally, the district court erred in granting summary judgment on the
“public interest” element of the CPA claim. Whether an allegedly deceptive act
affects the public interest is a question of fact, and the district court erred in
granting summary judgment before either side had an opportunity to develop the
factual record. See Hangman Ridge Training Stables, Inc. v. Safeco Title Ins., 719
P.2d 531, 537–38 (Wash. 1986); Fed. R. Civ. P. 56(f). Seattle argues that
International violated two sections of the Washington Auto Dealer Practices Act,
Wash. Rev. Code §§ 46.70.005–.70.900. The Washington Legislature has declared
that a violation of that Act affects the public interest per se. Wash. Rev. Code §
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46.70.310; see Sherwood v. Bellevue Dodge, Inc., 669 P.2d 1258, 1260–62 (Wash.
Ct. App. 1983), amended by 676 P.2d 557 (Wash. Ct. App. 1984). In granting
summary judgment on Seattle’s CPA claim sua sponte, the district court did not
consider whether Seattle could satisfy the public-interest element by proving that
International’s conduct breached either of these statutes.
We therefore reverse the district court’s grant of summary judgment and
remand for further proceedings on both Seattle’s and International’s CPA claims.
2. Finally, although it asserted a CPA claim against Tracey, International
did not name Tracey or identify the relevant portion of the district court’s order in
its notice of cross-appeal. Applying this court’s functional approach to the
interpretation of notices of appeal, we find no indication in the notice of cross-
appeal that International intended to appeal the district court’s order and judgment
dismissing its claim against Tracey. See Le v. Astrue, 558 F.3d 1019, 1022–23 (9th
Cir. 2009). International’s briefs may have provided some clarification regarding
the scope of its intended appeal, but Tracey has not had an opportunity to respond
to arguments made against him and thus would suffer prejudice if we were to
address the issue. Id. at 1023. We therefore lack jurisdiction to consider
International’s claim against Tracey. Fed. R. App. P. 3; Torres v. Oakland
Scavenger Co., 487 U.S. 312, 317 (1988) (describing Rule 3’s requirements as
jurisdictional).
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All pending motions are denied as moot.
Each party shall bear its own costs on appeal.
REVERSED IN PART, DISMISSED IN PART, and REMANDED.
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