NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 28 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICOLAS TORRENT, on Behalf of No. 16-56338 Himself and All Others Similarly Situated, D.C. No. Plaintiff-Appellant, 8:15-cv-00124-CJC-JCG

v.

MEMORANDUM*

YAKULT U.S.A., INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Argued and Submitted December 7, 2017 Pasadena, California

Before: NGUYEN and FRIEDLAND, Circuit Judges, and BLOCK,** District Judge.

Nicolas Torrent (“Torrent”) brought a putative class action against Yakult

U.S.A., Inc. (“Yakult”), claiming false advertising under California state law based

on Yakult’s alleged misrepresentations regarding its probiotic yogurt beverage.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. The district court denied Torrent’s motions for class certification and

reconsideration and, later, granted his motion to voluntarily dismiss the operative

complaint with prejudice. Torrent appealed, seeking review of the district court’s

orders denying certification and reconsideration. Yakult moves to dismiss the

appeal. We assume the parties’ familiarity with the facts and procedural history.

Yakult argues that we lack appellate jurisdiction in light of Microsoft Corp.

v. Baker, 137 S. Ct. 1702, 1712 (2017), which held that appellate courts lack

jurisdiction to review orders denying class certification after the named plaintiffs

have voluntarily dismissed their individual claims with prejudice. We agree,

finding no meaningful distinction between the voluntary dismissal here and the

tactic rejected in Baker. Accordingly, Yakult’s motion is granted.1

We note that dismissal of the appeal does not necessarily end the litigation.

When Torrent sought to voluntarily dismiss the case, the law of this circuit was

that a plaintiff could secure an appealable order by that means. See Berger v.

Home Depot USA, Inc., 741 F.3d 1061, 1066 (9th Cir. 2014); Concha v. London,

62 F.3d 1493, 1509 (9th Cir. 1995). Baker was pending in the Supreme Court at

that time, but had not yet been decided.

Under appropriate circumstances, a district court may grant relief from a

voluntary dismissal under Federal Rule of Civil Procedure 60(b)(6) based on an

1 Torrent’s motion to take judicial notice, dated July 16, 2018, is denied.

2 16-56338 intervening change in the law. See Phelps v. Alameida, 569 F.3d 1120, 1133–34

(9th Cir. 2009); see also In re Hunter, 66 F.3d 1002, 1004 (9th Cir. 1995) (“Courts

have held [a voluntary dismissal] is a judgment, order, or proceeding from which

Rule 60(b) relief can be granted.”). Phelps calls for a “case-by-case inquiry” into

“a number of factors.” 569 F.3d at 1133–35. Several of those factors point—at

least at first blush—in favor of granting relief here. Torrent sought a voluntary

dismissal specifically to pursue an appeal, thus negating any claim that setting

aside the dismissal would “disturb[] the parties’ reliance interest in the finality of

the case.” Phelps, 569 F.3d at 1137. Furthermore, he is a member of a limited set

of plaintiffs whose appeals were pending when Baker was decided. Granting relief

to such plaintiffs would not “indefinitely render preexisting judgments subject to

potential challenge.” Id. at 1138. Finally, there is an intimately “close

connection,” id. at 1139, between this case and Baker. Torrent relied on circuit

authority clearly approving his chosen means of pursuing an appeal. Baker

directly abrogated that authority. Considerations such as these led one district

judge to vacate a pre-Baker voluntary dismissal under Rule 60(b)(6). See Connelly

v. Hilton Grand Vacations Co., Case No. 12-CV-599, 2017 WL 5194598 (S.D.

Cal. Nov. 9, 2017).

The appeal is DISMISSED.

3 16-56338

FILED

Torrent v. Yakult U.S.A., Inc., No. 16-56338 SEP 28 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FRIEDLAND, Circuit Judge, dissenting:

The majority holds that we lack appellate jurisdiction under Microsoft Corp.

v. Baker, 137 S. Ct. 1702, 1712 (2017) (“Baker”). However, because I believe

Torrent’s voluntary dismissal can be meaningfully distinguished from the situation

in Baker, I respectfully dissent. Instead, I would hold that, in light of prior Ninth

Circuit cases that are not clearly irreconcilable with Baker, we can properly

exercise appellate jurisdiction under 28 U.S.C § 1291. See, e.g., Concha v.

London, 62 F.3d 1493, 1507 (9th Cir. 1995).

There are three primary distinctions between this case and Baker. First, the

district court order that Torrent seeks to appeal was specific to Torrent’s individual

claim for injunctive relief, and was about Rule 23 class certification only to the

extent that an individual plaintiff must have an individual claim in order to

represent a class. Second, Torrent voluntarily dismissed with prejudice his

separate individual claims for restitution and declaratory relief, not the injunctive

relief claim underlying the class allegation he pursues on appeal. And, third,

Torrent’s dismissal of his restitution and declaratory relief claims was truly final—

without any preservation of a right to reinstate them if an appeal succeeded, as

existed in Baker. In my view, these differences mean that this case does not implicate the Supreme Court’s concerns in Baker about end runs around Rule 23(f)

or about avoiding piecemeal appeals. Baker, 137 S. Ct. at 1713.

Under Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), to

deprive us of jurisdiction, Baker has to be clearly irreconcilable with our prior

caselaw under which we would have jurisdiction. See, e.g., Concha, 62 F.3d at

1507 (holding that a plaintiff may appeal a voluntary dismissal “when it is with

prejudice to his right to commence another action for the same cause or otherwise

subjects him to prejudicial terms or conditions”); Ward v. Apple, Inc., 791 F.3d

1041, 1046 (9th Cir. 2015). Because the majority’s approach is not the only

possible way of interpreting Baker’s reach, and there is another way of looking at it

under which Concha and other prior cases are reconcilable with Baker, I believe

we have jurisdiction. Cf. Brown v. Cinemark USA, Inc., 876 F.3d 1199, 1201 (9th

Cir. 2017) (holding that Baker did not deprive us of jurisdiction over any appeal of

a class certification denial in which the parties dismissed with prejudice individual

claims pursuant to a settlement).

Because I believe we have jurisdiction so should reach the merits of

Torrent’s appeal, I respectfully dissent.

2