                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 15 2011

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




                            FOR THE NINTH CIRCUIT



TRUEBLUE, INC., a Washington                     No. 09-36146
corporation,
                                                 D.C. No. 3:09-cv-05328-BHS
              Plaintiff - Appellant,

       v.                                        MEMORANDUM *

TIMOTHY P. DYN, an individual,

              Defendant - Appellee.

                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                       Argued and Submitted March 9, 2011
                               Seattle, Washington

Before: McKEOWN, FISHER and GOULD, Circuit Judges.

      The district court awarded fees to defendant Timothy Dyn after plaintiff

TrueBlue, Inc. voluntarily dismissed its complaint. We affirm.

      1. The district court did not err in concluding that TrueBlue sought to

enforce the Non-Competition Agreement in this action. TrueBlue’s claims center



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
on breach of the Non-Competition Agreement. Even if TrueBlue also sought in

part to recover benefits paid under the Employment Agreement and Release of

Claims, that claim was intertwined with and dependent on the claim for breach of

the Non-Competition Agreement. Thus, all of TrueBlue’s claims were properly

considered together for purposes of awarding fees. See Crown Custom Homes,

Inc. v. Sabatino, 18 So. 3d 738, 740 (Fla. Dist. Ct. App. 2009).

      Because TrueBlue sued under the Non-Competition Agreement, the district

court properly applied Florida law, which governs the availability of fees under

that contract. The choice of law provision in the Release of Claims does not alter

the parties’ earlier agreement that the Non-Competition Agreement is governed by

“the law of the State in which [Dyn] last worked for TrueBlue.”

      2. The district court correctly concluded that Dyn was the prevailing party

and was entitled to fees after TrueBlue’s voluntary dismissal. See Alhambra

Homeowners Ass’n v. Asad, 943 So. 2d 316, 318-20 (Fla. Dist. Ct. App. 2006).

      AFFIRMED.




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