                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JAN 06 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ROBERT ADAM KENNEDY, an                          No. 08-56378
individual on behalf of himself, and on
behalf of all persons similarly situated,        D.C. No. 3:07-cv-01082-H-RBB

             Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

NATURAL BALANCE PET FOODS,
INC., a California corporation,

             Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Southern District of California
                    Marilyn L. Huff, District Judge, Presiding

                    Argued and Submitted December 10, 2009
                             Pasadena, California

Before: PREGERSON, NOONAN and PAEZ, Circuit Judges.

       Appellant Robert Kennedy filed this proposed class action in San Diego

Superior Court on behalf of himself and all individuals in the United States who

purchased allegedly mislabeled pet food products sold by Natural Balance Pet


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Foods, Inc. The action was removed to federal court pursuant to 28 U.S.C. §

1441(a) and the Class Action Fairness Act, codified at 28 U.S.C. § 1332(d). The

district court denied Kennedy’s motion to certify a nationwide class and

subsequently dismissed the action for lack of subject-matter jurisdiction. Kennedy

appeals both orders. We affirm the denial but vacate the dismissal with

instructions to remand the action to San Diego Superior Court.

      Rule 23 of the Federal Rules of Civil Procedure governs when a federal

court may certify a class. A class must satisfy the four prerequisites of Rule 23(a)

and fall into one of the three categories of class actions defined in Rule 23(b). Fed.

R. Civ. P. 23; Parra v. Bashas’, Inc., 536 F.3d 975, 978 (9th Cir. 2008). The party

seeking class certification must demonstrate that certification is warranted, and the

court must conduct a “rigorous analysis” to determine that the prerequisites of Rule

23 have been met. Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th

Cir. 2001). In reviewing a denial of class certification, the standard of review is for

abuse of discretion. Parra, 536 F.3d at 977.

      We affirm the denial of Kennedy’s class certification motion. Kennedy

alleged violations of California’s Unfair Competition Law (“UCL”), Cal. Bus. &

Prof. Code § 17200, and California’s Consumer Legal Remedies Act (“CLRA”),

Cal. Civ. Code § 1770. In his CLRA claim, Kennedy also alleged violations of


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“parallel sister state statutes,” asserting that “all other states have consumer fraud

statutes which are substantially similar” to the CLRA. The district court denied

class certification in part because Kennedy failed to show that the proposed class

satisfied the commonality and typicality requirements of Rule 23(a)(2) and (3). In

so doing, the court noted Zinser’s requirement that the class plaintiff provide a

“thorough analysis of the applicable state laws” in a situation where “different

states’ laws would apply to the claims.” 253 F.3d at 188-89. Kennedy now

concedes that the CLRA claim should be limited to a California class. In addition,

as the district court noted, the CLRA applies only to “consumers,” but the

proposed class consists of all “individuals” who purchased the challenged

products, regardless of the purpose for which the products were purchased.

      The district court’s analysis under Rule 23 conflates the permissive

commonality and typicality requirements of Rule 23(a)(2) and (3) with the more

rigorous predominance requirement of Rule 23(b)(3). Nonetheless, we affirm the

court’s ultimate determination not to certify the class under Rule 23, because

Kennedy failed to satisfy the predominance requirement of Rule 23(b)(3) with

respect to the CLRA claim. See Zinser, 253 F.3d at 1189 (“Understanding which

law will apply before making a predominance determination is important when

there are variations in applicable state law.”). While Kennedy contends that the


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district court should have certified a nationwide class for the UCL claim, failure to

certify a subclass or certify a class with respect to particular issues is not an abuse

of discretion. See Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 947 (9th

Cir. 2009); Zinser, 253 F.3d at 1189-90. Accordingly, pursuant to Rule 23(b)(3),

we affirm the denial of Kennedy’s motion for certification of the proposed

nationwide class.

      The parties do not dispute that once the district court denied class

certification, it no longer had subject-matter jurisdiction over the action. The

district court erred in dismissing the case rather than remanding the action to state

court. Section 1447(c) of Title 28, which applies to cases removed from state

court, provides that “[i]f at any time before final judgment it appears that the

district court lacks subject matter jurisdiction, the case shall be remanded.” This

provision is mandatory. See Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251,

1257-58 (9th Cir. 1997).

      For the reasons above, the denial of Kennedy’s motion for class certification

is AFFIRMED. The order dismissing the action for lack of subject-matter

jurisdiction is VACATED and REMANDED with instructions to remand the

action to San Diego Superior Court.




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