722 F.3d 1163 (9th Cir. 2013), 10-55671, Logan v. U.S. Bank National Ass'n

Docket Nº:10-55671.
Citation:722 F.3d 1163
Opinion Judge:McKEOWN, Circuit Judge:
Party Name:Karen LOGAN, Plaintiff-Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee, Defendant-Appellee.
Attorney:Jay D. Trickett (argued), Arne D. Wagner, and James A. Quadra, Calvo & Clark, LLP, San Francisco, CA, for Plaintiff-Appellant. Thomas H. Dupree, Jr. (argued), Gibson, Dunn & Crutcher LLP, Washington, D.C.; Theane Evangelis Kapur, Andrew G. Pappas, Gibson, Dunn & Crutcher LLP, Los Angeles, CA; Joh...
Judge Panel:Before: M. MARGARET McKEOWN and MILAN D. SMITH, JR., Circuit Judges, and ROBERT HOLMES BELL, District Judge.[*]
Case Date:July 16, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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722 F.3d 1163 (9th Cir. 2013)

Karen LOGAN, Plaintiff-Appellant,


U.S. BANK NATIONAL ASSOCIATION, as Trustee, Defendant-Appellee.

No. 10-55671.

United States Court of Appeals, Ninth Circuit.

July 16, 2013

Argued and Submitted Jan. 10, 2013.

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Jay D. Trickett (argued), Arne D. Wagner, and James A. Quadra, Calvo & Clark, LLP, San Francisco, CA, for Plaintiff-Appellant.

Thomas H. Dupree, Jr. (argued), Gibson, Dunn & Crutcher LLP, Washington, D.C.; Theane Evangelis Kapur, Andrew G. Pappas, Gibson, Dunn & Crutcher LLP, Los

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Angeles, CA; John M. Sorich, S. Christopher Yoo, and Jenny L. Merris, Adorno Yoss Alvardo & Smith, Santa Ana, CA, for Defendant-Appellee.

Kent Qian, National Housing Law Project, Oakland, CA; Samantha Tuttle, Sargent Shriver National Center on Poverty Law, Chicago, IL, for Amicus Curiae National Housing Law Project, Sargent Shriver National Center on Poverty Law, Public Justice Center, National Law Center on Homelessness and Poverty, Tenants Together, Legal Services of Northern California, Housing and Economic Rights Advocates, Housing Umbrella Group, and Community Legal Services.

Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding. D.C. No. 2:09-cv-08950-MMM-PLA.

Before: M. MARGARET McKEOWN and MILAN D. SMITH, JR., Circuit Judges, and ROBERT HOLMES BELL, District Judge.[*]


McKEOWN, Circuit Judge:

We consider here an issue of first impression— whether the Protecting Tenants at Foreclosure Act of 2009 (" PTFA" or " the Act" ) provides a private right of action. Pub.L. No. 111-22, § 701-04, 123 Stat. 1632, 1660-62 (2009). Karen Logan sought injunctive relief and damages against U.S. Bank National Association (" U.S. Bank" ) after it filed an unlawful detainer action against her in state court without giving 90 days notice to vacate the foreclosed property as required by the Act. Although we disagree with the district court's abstention from exercising jurisdiction over Logan's injunctive relief claim under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), we nevertheless affirm dismissal of the complaint because the Act does not create a private right of action allowing Logan to enforce its requirements.


Logan claims that she was the tenant of the former owner of a property located in Westlake Village, California.1 U.S. Bank took title to the property at foreclosure in June 2009. According to Logan, U.S. Bank served her with a three-day notice of termination and then immediately initiated an unlawful detainer action in Los Angeles Superior Court. Logan alleges that these actions contravened the PTFA, which required U.S. Bank to serve a 90-day notice of termination prior to eviction.

After the unlawful detainer action was initiated in June 2009, Logan filed a demurrer raising the PTFA issue, but the demurrer was overruled. Logan twice attempted, albeit unsuccessfully, to remove the unlawful detainer action to federal court.

Logan filed her action in federal court in December 2009, seeking " temporary, preliminary, and permanent injunctive relief compelling obediance [sic] to the Federal Law," as well as damages. The district court dismissed the complaint, concluding that Younger v. Harris required it to abstain from exercising jurisdiction because

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Logan sought to enjoin an action that was pending in state court at the time she filed her case in federal court. The district court further reasoned that it did not have subject matter jurisdiction over Logan's claim for damages under the PTFA because the Act does not create a private right of action.



As a threshold matter, we address whether Logan's appeal is moot given U.S. Bank's voluntary dismissal of the unlawful detainer action in February 2010, just two months before she filed this appeal. Article III of the Constitution limits federal courts to the adjudication of actual, ongoing cases or controversies between litigants. If a " live" controversy ceases to exist because of changed circumstances after the complaint is filed, the claim is moot and no longer justiciable. Am. Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010, 1016 (9th Cir.2006). However, when the basis for mootness is defendant's voluntary conduct, a federal court is not " deprive[d] ... of its power to determine the legality of the practice," leaving the defendant " free to return to [its] old ways." Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (internal quotation marks and citations omitted). Rather, the defendant must " bear[ ] the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Id. at 190, 120 S.Ct. 693 (citing United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)).

US Bank has not met this formidable burden. Its voluntary dismissal of the unlawful detainer action without prejudice does not make it " absolutely clear" that the alleged wrongful eviction " could not reasonably be expected to recur." Id. The bank has offered no evidence or reassurance that it either could not or would not reinitiate the unlawful detainer action against Logan at another time, should she remain in possession of the property. Additionally, even if the request for injunctive relief were moot, Logan's pursuit of monetary relief ensures that the case " remains definite and concrete, touching the legal relations of parties having adverse legal interests." Havens Realty Corp. v. Coleman, 455 U.S. 363, 371, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (internal quotation marks and citation omitted). Dismissal of the state unlawful detainer proceedings did not moot Logan's claim.


As a general rule, a federal court has a " virtually unflagging obligation" to adjudicate controversies properly before it. Deakins v. Monaghan, 484 U.S. 193, 203, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988) (internal quotation marks and citation omitted). In carrying out this duty, federal courts " may well affect, or for practical purposes pre-empt" a pending state court action, but " there is no doctrine that ... the pendency of state judicial proceedings excludes the federal courts." New Orleans Pub. Serv. Inc. (" NOPSI " ) v. Council of New Orleans, 491 U.S. 350, 373, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). To the contrary, a pending action in state court is generally " no bar to proceedings concerning the same matter in the Federal court having jurisdiction." Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 54 L.Ed. 762 (1910)).

Against this backdrop, the Supreme Court has carved out an " ‘ extraordinary and narrow exception.’ "

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Colo. River Water Conservation, 424 U.S. at 813, 96 S.Ct. 1236 (quoting Cnty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959)). In Younger v. Harris, the Supreme Court held that a federal court may not interfere with a pending state criminal prosecution absent extraordinary circumstances. 401 U.S. at 43-54, 91 S.Ct. 746. This principle has also been extended to limited classes of civil proceedings. See NOPSI, 491 U.S. at 367-68, 109 S.Ct. 2506. For example, in Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), the Supreme Court applied Younger abstention to state attorney disciplinary proceedings, but was careful to limit its application in the non-criminal context to those cases where (1) there is an ongoing state proceeding, (2) the state proceeding implicates important state interests, and (3) the state proceeding provides an adequate opportunity to raise federal questions. Interpreting the Supreme Court's directive, the Ninth Circuit has emphasized another criterion: (4) that the federal action would enjoin the state proceeding or have the practical effect of doing so. San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir.2008). All four elements must be satisfied to warrant abstention. AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1148 (9th Cir.2007).

U.S. Bank's unlawful detainer action meets three of the four requirements. To begin, there was an ongoing proceeding in state court when Logan filed the federal action in December 2009. Although U.S. Bank later voluntarily dismissed the state action without prejudice in February 2010, the relevant date for evaluating abstention is the date the federal action is filed. Gilbertson v. Albright, 381 F.3d 965, 969 n. 4 (9th Cir.2004) (en banc); Kitchens v. Bowen, 825 F.2d 1337, 1341 (9th Cir.1987) (" [T]he critical question is not whether the state proceedings are still ongoing, but whether the state proceedings were underway before initiation of the federal proceedings." ) (internal quotation marks and citation omitted). Second, Logan had the opportunity to litigate her federal question in state court. Although she was unsuccessful, the pertinent inquiry in the abstention context is whether plaintiffs' federal claims " could have been raised in the pending state proceedings." Moore v. Sims, 442 U.S. 415, 425, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). Logan also meets the third prong: The purpose of her federal action is either to enjoin the state proceeding directly or to have the practical effect of doing so by limiting U.S. Bank's ability to pursue its state court action.

Despite satisfying these three requirements, abstention is not warranted because the state unlawful detainer action does not implicate " important state interests." Notwithstanding its apparent...

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