NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 22 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SKYCORP LTD, No. 21-35043

Plaintiff-Appellant, D.C. No. 2:20-cv-01632-JCC

v.

MEMORANDUM*

KING COUNTY, a municipal subdivision of State of Washington,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Argued and Submitted September 3, 2021 Seattle, Washington

Before: HAWKINS and McKEOWN, Circuit Judges, and RAKOFF,** District Judge.

SkyCorp Ltd appeals the district court’s grant of King County’s motion to

dismiss its claims seeking declaratory judgment arising under the Due Process

Clause of the Fourteenth Amendment and the Dormant Commerce Clause of the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. United States Constitution. The parties are familiar with the facts, so we do not

repeat them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in

part and dismiss in part.

The district court appropriately dismissed SkyCorp’s Due Process Clause

claim because SkyCorp failed to allege facts sufficient to meet the federal pleading

standard. See Fed. R. Civ. P. 8(a)(2). That standard “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation,” and a complaint will

not suffice if it “tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration in original)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)).

SkyCorp’s spare and conclusory allegations that the challenged ordinance

“expressly deprive[s] [SkyCorp] of its rights and liberties . . . in a manner which

fails to advance any legitimate interest of King County,” and as a result “directly

and proximately deprived [SkyCorp] of [its] property rights absent substantive due

process of law” do not meet this standard. Thus, we affirm the district court’s

dismissal of this claim.

We dismiss SkyCorp’s Dormant Commerce Clause claim, albeit on different

grounds than the district court. Although the parties did not address standing in

their appellate briefing, we have “an obligation to assure ourselves” of litigants’

standing under Article III. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340

2 (2006) (quoting Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC),

Inc., 528 U.S. 167, 180 (2000)). “Article III standing requires an injury that is

actual or imminent, not conjectural or hypothetical.” Shell Offshore, Inc. v.

Greenpeace, Inc., 709 F.3d 1281, 1286 (9th Cir. 2013) (quoting Cole v. Oroville

Union High Sch. Dist., 228 F.3d 1092, 1100 (9th Cir. 2000)). In the context of

declaratory or injunctive relief, the plaintiff also must demonstrate a “real or

immediate threat of an irreparable injury.” Id.

SkyCorp has not alleged facts sufficient to establish standing to assert its

Dormant Commerce Clause claim. For example, SkyCorp’s allegations regarding

its out-of-state waste disposal are silent as to whether King County has ever

enforced the challenged ordinance against it for such conduct in the past—or

intends to do so in the future. Thus, absent allegations of a “real or immediate

threat of irreparable injury,” SkyCorp cannot establish Article III standing to

pursue its Dormant Commerce Clause claim. Id. We note, however, that King

County acknowledged at oral argument that SkyCorp’s claims might be viable in

the future in the event of appropriate allegations.

AFFIRMED IN PART AND DISMISSED IN PART. Each party shall

bear its own costs.

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