                                                                           FILED
                           NOT FOR PUBLICATION
                                                                             SEP 29 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARLEY CASTRO and LUCIA                          No. 15-16627
MARMOLEJO,
                                                 D.C. No. 4:14-cv-05359-YGR
              Plaintiffs - Appellees,

 v.                                              MEMORANDUM*

ABM INDUSTRIES INCORPORATED;
et al.,

              Defendants - Appellants.


                  Appeal from the United States District Court
                     for the Northern District of California
                Yvonne Gonzalez Rogers, District Judge, Presiding

                    Argued and Submitted September 15, 2015
                            San Francisco, California

Before: W. FLETCHER, BERZON, and BEA, Circuit Judges.

      ABM appeals the district court’s remand of this suit to California state court.

The district court evaluated Castro’s motion to remand on the basis of the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
complaint Castro originally filed in state court, rather than on the basis of the

amended complaint Castro filed in federal court.

      ABM petitioned for permission to appeal based on the question whether the

district court considered the correct complaint. Because ABM removed this case a

second time after appealing the first remand order, the district court is currently

reviewing Castro’s motion to remand on the basis of the amended complaint.

      This appeal is moot.

      ABM did not challenge or brief on appeal the complex amount-in-

controversy issue regarding the original complaint. So this Court cannot evaluate

ABM’s assertion that the non-PAGA claims, standing alone, would satisfy

CAFA’s jurisdictional threshold. See Christian Legal Soc’y Chapter of Univ. of

Cal. v. Wu, 626 F.3d 483, 487-88 (9th Cir. 2010). The only relief this Court could

order, therefore, would be a remand to the district court to consider Castro’s

motion to remand on the basis of the amended complaint. But the district court is

already considering exactly the same issue after the second removal. Any decision

we might issue as to whether it should have done so earlier could have no impact

on the ultimate question whether this case proceeds in state or federal court. See

Blair v. Martel, 645 F.3d 1151, 1157 (9th Cir. 2011) (holding that a claim became

moot when lower court undertook the very action sought, as an order by the


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appellate court “to do something faster” could at that point have no effect). Where

resolution of a question “cannot affect the rights of litigants in the case before” an

Article III court, the court “loses its power to render a decision on the merits of

[the] claim.” Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 834 (9th Cir.

2014).

      The mootness exception for cases “capable of repetition yet evading review”

does not apply because this controversy is not “of inherently limited duration.”

Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827, 836 (9th Cir. 2014). The

issue ABM raises regarding which complaint to consider where a complaint is

amended after removal can well arise in contexts allowing for review of the

question without mootness concerns. That happened just recently in Benko v.

Quality Loan Service Corp., 789 F.3d 1111, 1117 (9th Cir. 2015). Because no

mootness exception applies, dismissal is proper. See W. Coast Seafood Processors

Ass’n v. NRDC, 643 F.3d 701, 705 (9th Cir. 2011).

      This appeal is therefore dismissed.




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