Ewert v. eBay, Inc., 012615 FED9, 12-17251

Docket Nº:12-17251
Party Name:MICHAEL EWERT, on behalf of himself and for the Benefit of all with Common General Interest, any Persons Injured, and all others similarly situated, Plaintiff - Appellant, v. eBAY, INC., Defendant-Appellee.
Judge Panel:Before: TASHIMA and PAEZ, Circuit Judges, and BLOCK, Senior District Judge.
Case Date:January 26, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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MICHAEL EWERT, on behalf of himself and for the Benefit of all with Common General Interest, any Persons Injured, and all others similarly situated, Plaintiff - Appellant,

v.

eBAY, INC., Defendant-Appellee.

No. 12-17251

United States Court of Appeals, Ninth Circuit

January 26, 2015

NOT FOR PUBLICATION

Argued and Submitted December 12, 2014 San Francisco California

Appeal from the United States District Court for the Northern District of California D.C. No. 5:07-cv-02198-RMW Ronald M. Whyte, Senior District Judge, Presiding

Before: TASHIMA and PAEZ, Circuit Judges, and BLOCK, Senior District Judge. [**]

MEMORANDUM [*]

Plaintiffs, users of the online marketplace eBay.com, alleged claims for breach of contract and violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200, and False Advertising Law ("FAL"), id. § 17500, against defendant eBay, Inc. ("eBay"). Plaintiffs alleged that the delays between the time an eBay seller posts an item and the time that item's listing appears in search results constituted a breach of the User Agreement and violated the UCL and the FAL. They proposed as their theory of damages a "pro rata refund" of the fees sellers pay to list their items, prorated to the proportion of listing time lost to delay. Plaintiffs also alleged that eBay breached its User Agreement with sellers of renewable, "Good 'Til Cancelled" ("GTC") listings by raising fees for existing listings.

Plaintiffs appeal the district court's grant of summary judgment in favor of eBay on all claims arising from the alleged search delays. They also appeal the district court's ruling granting eBay's motion to dismiss the GTC listing claims under Federal Rule of Civil Procedure 12(b)(6) and denying plaintiffs' request for leave to amend.

We review de novo the district court's grant of summary judgment and its grant of eBay's motion to dismiss. Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1014 (9th Cir. 2000); Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We review the district court's denial of leave to amend for abuse of discretion. Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1.

The district court did not err when it granted eBay's motion for summary judgment on plaintiffs' breach of contract claim. Summary...

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