                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 15 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



STEVEN BITTER, individual and on                 No. 11-56057
behalf of a class of others similarly
situated,                                        D.C. No. 2:11-cv-01736-PA-VBK

              Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

RADIOSHACK CORP., a Delaware
corporation,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                           Submitted February 8, 2013 **
                              Pasadena, California

Before: CALLAHAN, IKUTA, and HURWITZ, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Plaintiff Steve Bitter appeals the district court’s order staying this putative

class action pursuant to the Colorado River doctrine. See Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). We have

jurisdiction under 28 U.S.C. § 1291, Nakash v. Marciano, 882 F.2d 1411, 1413

(9th Cir. 1989), and we affirm.

      The district court did not abuse its discretion in ruling that the state court

plaintiff’s pursuit of mediation did not reflect a lack of diligence or suggest that the

state proceeding was inadequate. Nor did the district court err in concluding that

the threat of piecemeal litigation weighed in favor of granting a stay because,

contrary to Bitter’s argument, certification of a federal class would not have

terminated the parallel state court action. Negrete v. Allianz Life Ins. Co. of N. Am.,

523 F.3d 1091, 1100 (9th Cir. 2008).

      We also reject Bitter’s contention that the district court erred in failing to

consider Federal Rule of Civil Procedure 23 in applying the Colorado River

doctrine. Rule 23 governs the procedure for maintaining a federal action on behalf

of a class, Fed. R. Civ. P. 23. It does not apply to the antecedent question of

whether a district court should stay the federal action in deference to a parallel state

court action. In any event, the Colorado River doctrine already takes into account




                                           2
Rule 23’s concerns about fairness, adequacy, and efficiency. See Fed. R. Civ. P.

23(a)(4), (b)(3); Marciano, 882 F.2d at 1415.

       We grant Bitter’s request, filed February 13, 2012, that this court take

judicial notice of the Los Angeles Superior Court’s case summary of the parallel

state court action.

      AFFIRMED.




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