                                                                             FILED
                            NOT FOR PUBLICATION
                                                                                 MAR 02 2016
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


HANNA BERNARD; et al.,                            No. 13-57158

              Plaintiffs - Appellants,            D.C. No. 2:11-ml-02274-DSF-
                                                  PLA
  v.

CITIMORTGAGE INC., a New York                     MEMORANDUM*
corporation,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                       Argued and Submitted February 4, 2016
                                Pasadena, California

Before: CALLAHAN and N.R. SMITH, Circuit Judges and RAKOFF,** Senior
District Judge.

       Hanna Bernard and others (“Plaintiffs”) appeal the district court’s order

denying their motion for class certification in their diversity action against


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
CitiMortgage Inc. (“Citi”). We have jurisdiction under 28 U.S.C. § 1291. We

affirm.

      “A ruling on class certification ‘is subject to a very limited review and will

be reversed only upon a strong showing that the district court’s decision was a

clear abuse of discretion.’” Desai v. Deutsche Bank Sec. Ltd., 573 F.3d 931, 937

(9th Cir. 2009) (per curiam) (quoting In re Mego Fin. Corp. Sec. Litig., 213 F.3d

454, 461 (9th Cir. 2000)). Under this standard, we first “consider whether the

district court identified the correct legal standard.” United States v. Hinkson, 585

F.3d 1247, 1251 (9th Cir. 2009) (en banc). We next “determine whether the district

court’s findings of fact, and its application of those findings of fact to the correct

legal standard, were illogical, implausible, or without support in inferences that

may be drawn from facts in the record.” Id.

      The parties do not dispute that the district court identified the correct legal

standard for class certification as Federal Rule of Civil Procedure 23. Instead,

Plaintiffs contend that the district court’s application of Rule 23 was “illogical,

implausible, or without support in inferences that may be drawn from facts in the

record.” Id.

      The district court did not abuse its discretion in denying certification under

Rule 23(b)(3). As required by Wang v. Chinese Daily News, Inc., 737 F.3d 538,


                                            2
545 (9th Cir. 2013), the district court’s analysis focused on the relationship

between the common and individual issues in the case. In doing so, the district

court determined that individual issues predominated over common issues, because

determination of the deadline by which Citi was allegedly required to grant or

deny permanent modification could not be made “simply by identifying the MED

[Modification Effective Date] as stated in the TPP [Trial Payment Plan

Agreement].” In re CitiMortgage, Inc. Home Affordable Modification Program

(HAMP) Litig., No. 11-2274, 2013 WL 8844095, at *6 (C.D. Cal. Oct. 7, 2013).

Rather, such a determination would also require inquiry into issues unique to each

class member.Id. The district court supported this conclusion with specific

examples. “The deadline may also have been affected by the parties’ course of

conduct, changes in income, inaccurately or incompletely reported income, oral

and written representations regarding documentation still needed and other

modification options, applicable Treasury Directives, and other considerations.” Id.

The district court then noted that these additional considerations were critical to

determining not only whether Citi had breached the TPP, but also the amount of

damages. Id. Because of the importance of these individual factors, the district

court concluded that individual issues predominated over common issues, noting




                                           3
that “it is clear that an evaluation of the merits of the proposed class claim would

require significant individualized inquiry.” Id.

      The district court also did not abuse its discretion by denying class

certification under Rule 23(b)(1), because Plaintiffs failed to “affirmatively

demonstrate [their] compliance” with Rule 23(b)(1). Comcast Corp. v. Behrend,

133 S. Ct. 1426, 1432 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.

2541, 2551-2552 (2011)). As the district court noted, Plaintiffs’ footnoted

arguments under Rule 23(b)(1) were “cursory” and lacked “any substantive

explanation as to why the reasoning in [the cases Plaintiffs cited] would support

certification on the facts and law in this case.” In re CitiMortgage, Inc., 2013 WL

8844095, at *4.

      Lastly, the district court did not abuse its discretion by denying class

certification under Rule 23(b)(2). For the first time on appeal, Plaintiffs

alternatively characterize their legal theory as seeking declaratory relief to qualify

under Rule 23(b)(2).1 Because this argument was not raised before the district

court, it is waived. O’Rourke v. Seaboard Surety Co. (In re E.R. Fegert, Inc.), 887

F.2d 955, 957 (9th Cir. 1989).

      1
         Before the district court, Plaintiffs characterized their Rule 23(b)(2) theory
as seeking injunctive relief—i.e., to enjoin Citi from collecting certain fees and to
require corrective reporting.

                                           4
AFFIRMED.




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