Ashley ADAMS, individually and on behalf of all others similarly situated, Plaintiff, and Alexandra Severance, Plaintiff-Appellant, v. AT & T MOBILITY, LLC, a Delaware limited liability company, Defendant-Appellee.
No. 11-35871
United States Court of Appeals, Ninth Circuit
April 17, 2013
Argued and Submitted April 9, 2013.
On remand, the district court found no genuine dispute of material fact as to any improperly seized (1) rental payments, (2) sports memorabilia, and (3) personal computers. The district court also found no genuine dispute of material fact as to whether (4) the government sold Eames‘s validly forfeited coins and computers at below-market value, and as to whether (5) Eames received all the boxes of property sent to him by the government. The district court properly denied Eames‘s 41(g) motion as to these five items because Eames fails to raise any genuine disputes of material fact as to whether the government possesses the items. See Kardoh v. United States, 572 F.3d 697, 702 (9th Cir. 2009).
The government admitted it misplaced four gold coins which it had seized, and the district court ordered the government to make payment equal to the coins’ value. The government valued the misplaced coins at $874, and remitted this sum in 2009 to the district court for application against Eames‘s $8.7 million restitution obligation. The district court, which did not have the benefit of our decision in Ordonez v. United States, 680 F.3d 1135 (9th Cir. 2012), should have denied Eames‘s motion in its entirety. After supplemental briefing, the government, citing Ordonez, contends correctly that district court lacked jurisdiction to order payment of money damages because sovereign immunity bars an award of money damages against the government on a motion to recover property under Rule 41(g). Id. at 1139-40. We therefore vacate the district court‘s award of money damages and remand with instructions to dismiss Eames‘s claim for the four lost coins. We affirm with respect to all other claims.
AFFIRMED in part; VACATED in part and REMANDED with instructions.
Evan Mark Tager, Richard Brian Katskee, Counsel, Archis Ashok Parasharami, Mayer Brown LLP, Washington, DC, David Alan Bateman, K & L Gates LLP, Seattle, WA, for Defendant-Appellee.
Before: D.W. NELSON, TASHIMA, and CALLAHAN, Circuit Judges.
MEMORANDUM *
Plaintiff Alexandra Severance appeals from the district court‘s order compelling arbitration and dismissing the case. We review the validity and scope of the arbitration clause de novo and the district court‘s findings of fact for clear error. Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1267 (9th Cir.2006) (en banc). We affirm.
AT & T Mobility, LLC (“ATTM“) had a contractual right to invoke the arbitration clause in Severance‘s wireless contract because ATTM is New Cingular Wireless PCS‘s parent company and New Cingular Wireless PCS was the successor to Severance‘s contract. Contrary to Severance‘s view, DC Newco LLC never held the wireless contracts; rather, it owned a complete membership interest in the holding company that owned the contracts, Rural Newco LLC.
II
Severance‘s dispute with ATTM is within the scope of the arbitration clause in her wireless contract. Severance argues that her contract uses the word “us” to refer only to Unicel. But Unicel is now defunct, so Severance‘s proposed interpretation would effectively nullify the contract. Severance cannot plausibly argue that the parties intended that the arbitration clause would no longer apply to any dispute now that Unicel has ceased to be. See Suchoski v. Redshaw, 163 Vt. 620, 660 A.2d 290, 292 (1995) (“We interpret the contract according to its terms and the parties’ intent as expressed in the contract language.“).
At minimum, the contract terms “we” and “us” include Unicel‘s successors. The only remaining question is whether the arbitration clause applies only to disputes between Severance and Unicel‘s successor, New Cingular Wireless PCS, or whether it also applies to disputes between Severance and New Cingular Wireless‘s parent company, ATTM.1 On this question the text is not perfectly clear, but we think the latter interpretation is correct. The arbitration clause redefines the subject pronoun “we” to include various additional parties, such as assignees, parent companies, successors, subsidiaries, and affiliates. It is unlikely that the object pronoun “us,” used in the same sentence, was intended to denote different parties than “we.” It is also implausible that the arbitration clause would give the authority to compel arbitration to an entity outside the scope of the clause. A Unicel subsidiary or affiliate would have no reason to elect to arbitrate a dispute under the contract if the arbitration clause only applied to disputes between customers and Unicel itself. At the very least, the clause is ambiguous, and the Supreme Court has been clear that “ambiguities as to the scope of the arbitration clause” must be “resolved in favor of arbitration.” Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62 (1995) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 476 (1989)).
III
The district court did not clearly err when it found that Severance “f[e]ll well short of proving” that she has “no effective means to vindicate [her] rights” in arbitration. Coneff v. AT & T Corp., 673 F.3d 1155, 1159 (9th Cir.2012) (emphasis omitted). Severance‘s evidence of her prospective arbitral costs consisting solely of a declaration by her counsel—explains only that she will be required to engage in “significant” discovery to prove her case. The declaration contains no spe
AFFIRMED.