Summaries of Selected Opinions, 0219 COBJ, Vol. 48, No. 2 Pg. 76

PositionVol. 48, 2 [Page 76]

48 Colo.Law. 76

Summaries of Selected Opinions

Vol. 48, No. 2 [Page 76]

The Colorado Lawyer

February, 2019

U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 17-4177. American Charities for Reasonable Fundraising Regulation, Inc. v. O’Ban-non. 11/21/2018. D.Utah. Judge Bacharach. Mootness—Change in Statute—Exceptions to Mootness—Manifest Injustice.

Plaintiff is a New York company that advises charities on fundraising. A Utah state law required plaintiff to register and obtain a Utah permit. Plaintiff sued the state official in charge of enforcing the requirements, claiming the statutory requirements were unconstitutional. The district court granted summary judgment for defendant, and plaintiff appealed. While the appeal was pending, Utah revised the law, and defendant conceded that the registration and permit requirements no longer apply to plaintiff.

On appeal, plaintiff denied that the appeal is moot, arguing that the law did not materially change and that disputes remain over damages, interest, and attorney fees. The change in the law fundamentally altered the registration and permit requirements. This material change in the law renders the appeal moot. Further, plaintiff's complaint did not request damages, nor did plaintiff move for interest or attorney fees. Thus, a case or controversy no longer exists.

Plaintiff also argued that the appeal falls into an exception to the mootness doctrine because it is “capable of repetition which will evade review.” The behavior here (the adoption of the statute) is not necessarily too quick for resolution through litigation, so this exception does not apply. Nor does the exception for defendant’s voluntary cessation of the challenged practice apply; plaintiff did not suggest a reason to believe that Utah would rescind or improperly enforce the statutory changes, and the Utah legislature has expressed no intent to reenact the old law.

Plaintiff further argued that the dismissal for mootness would create “manifest injustice.” The Tenth Circuit held that it could not overlook the jurisdictional nature of mootness even if the outcome was manifestly unjust.

The appeal was dismissed and the case was remanded with instructions to the district court to vacate the judgment and dismiss the case.

No. 17-4178. Wakaya Perfection, LLC v. Youngevity International, Inc. 12/11/2018. D.Utah. Judge Bacharach. Parallel Appeals—Abstention Doctrine—Two Pending Federal Cases—First-to-File Rule—Arbitration.

Plaintiffs sued defendants in Utah state court. Defendants then fled suit in California federal court and removed the Utah state suit to federal court. This resulted in concurrent federal cases sharing some claims, one of which was whether arbitration was required. The California litigation progressed, and the Utah federal district court ordered dismissal, ruling that the Utah court should abstain from exercising jurisdiction and that plaintiffs’ claims must be decided by an arbitrator.

On appeal, the Tenth Circuit held that the district court applied the wrong abstention test when deciding whether to dismiss the Utah lawsuit. However, the Tenth Circuit recognized that it had not established a comprehensive test governing abstention when both cases are in federal court, and it provided guidance for deciding whether to...

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