                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 09 2016
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

HAROLD MAPLE, individually and on                No. 13-36089
behalf of all others similarly situated,
                                                 D.C. No. 2:12-cv-05166-RMP
              Plaintiff - Appellant,

 v.                                              MEMORANDUM*

COSTCO WHOLESALE
CORPORATION, a Washington
corporation; NIAGARA BOTTLING
LLC, a California limited liability
company,

              Defendants - Appellees.



HAROLD MAPLE, individually and on                No. 14-35038
behalf of all others similarly situated,
                                                 D.C. No. 2:12-cv-05166-RMP
              Plaintiff - Appellee,

 v.

COSTCO WHOLESALE
CORPORATION, a Washington
corporation,

              Defendant - Appellant,


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 and

NIAGARA BOTTLING LLC, a California
limited liability company,

             Defendants.



HAROLD MAPLE, individually and on              No. 14-35059
behalf of all others similarly situated,
                                               D.C. No. 2:12-cv-05166-RMP
             Plaintiff - Appellee,

v.

COSTCO WHOLESALE
CORPORATION, a Washington
corporation,

             Defendants,

 and

NIAGARA BOTTLING LLC, a California
limited liability company,

             Defendant - Appellant.


                 Appeals from the United States District Court
                    for the Eastern District of Washington
               Rosanna Malouf Peterson, District Judge, Presiding




                                           2
                              Submitted May 5, 2016**
                                Seattle, Washington

Before: GRABER, BERZON, and MURGUIA, Circuit Judges.

      Plaintiff Harold Maple appeals the district court’s dismissal, without leave to

amend, of his putative class-action complaint alleging deceptive labeling in

violation of the Washington Consumer Protection Act resulting from his purchase

of "VitaRain Tropical Mango Vitamin Enhanced Water Beverage." Defendants

Costco Wholesale Corporation and Niagara Bottling LLC cross-appeal,

challenging the court’s decision to dismiss "without prejudice." We affirm in part,

vacate in part, and remand with instructions to re-enter the judgment "with

prejudice."

      1. The district court correctly held that the complaint failed to state a claim.

See Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir.

2007) (holding that we review de novo a dismissal for failure to state claim). As a

matter of law, the name of the beverage is not "likely to mislead a reasonable

consumer." Panag v. Farmers Ins. Co. of Wash., 204 P.3d 885, 894–95 (Wash.

2009) (internal quotation marks omitted). The district court’s decision in

Ackerman v. Coca-Cola Co., No. CV-09-0395, 2010 WL 2925955 (E.D.N.Y. July


        **
          The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
                                           3
21, 2010) (unpublished), is not to the contrary. In that case, the court found

important that the beverage’s name—"vitaminwater"—contained the full names of

two of the ingredients and that the label included misleading statements such as

"vitamins+water = what’s in your hand." Id. at *12–15. Here, the term "Vita"

could mean many things, rain could not be an actual ingredient, and the label

contains no misleading statements.

       To the extent that Plaintiff’s claim challenges the labeling of the type of

"caffeine" or "tonic" as "natural" or "all natural" and the failure to describe the

caffeine and other ingredients as "unnatural," the claim fails because Plaintiff has

not alleged that he read those parts of the label. Accordingly, he cannot establish

causation. See, e.g., Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash.,

Inc., 170 P.3d 10, 22 (Wash. 2007) ("A plaintiff must establish that, but for the

defendant’s unfair or deceptive practice, the plaintiff would not have suffered an

injury.").

       2. The district court correctly held that dismissal without leave to amend

was proper. On appeal, Plaintiff argues that amendment could save the complaint

because he could allege a subclass of plaintiffs who did read the relevant parts of

the label. But because Plaintiff’s own individual claim fails, dismissal without

leave to amend was correct; the potential existence of other classes of which


                                            4
Plaintiff is not a member is irrelevant. Sanford v. MemberWorks, Inc., 625 F.3d

550, 560–61 (9th Cir. 2010); Boyle v. Madigan, 492 F.2d 1180, 1182 (9th Cir.

1974) (citing O’Shea v. Littleton, 414 U.S. 488, 494 (1974)).

      3. The district court abused its discretion by dismissing the action without

prejudice. See WPP Luxembourg Gamma Three Sarl v. Spot Runner, Inc., 655

F.3d 1039, 1048 (9th Cir. 2011) (holding that we review for abuse of discretion "a

district court’s decision to dismiss without prejudice."). The court’s only reason,

that it "ha[d] not considered the merits of this case," is contrary to law. See, e.g.,

Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981) (holding that

a "dismissal for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6) is a ‘judgment on the merits’"); accord Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211, 228 (1995).

      Accordingly, we vacate the judgment’s dismissal of the action "without

prejudice" and remand with instructions to re-enter judgment "with prejudice."

      AFFIRMED in part, VACATED in part, and REMANDED with

instructions. Costs on appeal awarded to Defendants-Appellants/Appellees.




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