                                                                             FILED
                           NOT FOR PUBLICATION                               MAR 19 2010

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




                            FOR THE NINTH CIRCUIT



KATHLEEN EDWARDS,                                No. 07-15251

             Plaintiff - Appellant,              D.C. No. CV-05-03076-BZ

  v.
                                                 MEMORANDUM *
PRINCESS CRUISE LINES, LTD.,

             Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Northern District of California
                 Bernard Zimmerman, Magistrate Judge, Presiding

                      Argued and Submitted February 9, 2010
                            San Francisco, California

Before: O’SCANNLAIN, TROTT, and PAEZ, Circuit Judges.

       Kathleen Edwards appeals from the district court’s grant of summary

judgment to Princess Cruise Lines, Ltd. (“Princess”), denial of post-judgment

relief, and award of costs in this action arising under the Americans with




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Disabilities Act (“ADA”) and California law. The facts are known to the parties,

and we do not repeat them here except as necessary.

                                          I

      “Federal courts are required sua sponte to examine jurisdictional issues such

as standing.” D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th

Cir. 2008) (internal quotation marks omitted). Moreover, the issue of standing is

nonwaivable. Id. at 1036. Having examined the record, we are satisfied that

Edwards has established that she has standing. Id. at 1037; Pickern v. Holiday

Quality Foods Inc., 293 F.3d 1133, 1137-38 (9th Cir. 2002).

                                          II

                                          A

      The district court granted summary judgment on grounds that the six-month

contractual limitations period in the passage contract for the 2003 cruise barred

Edwards’ claims. Invocation of a contractual limitations period to bar a claim is an

affirmative defense. Han v. Mobil Oil Corp., 73 F.3d 872, 877-78 (9th Cir. 1995).

Therefore, Princess bears the burden of proof and “must come forward with

evidence which would entitle it to a directed verdict if the evidence went

uncontroverted at trial.” Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)

(internal quotation marks omitted).


                                          2
         We are persuaded, however, that Princess failed to carry its initial burden on

summary judgment. Because its motion misconstrued Edwards’ claims as relating

to her 2003 cruise only (as distinguished from injunctive relief for future cruises),

Princess failed to establish that they fell within the ambit of the contractual

limitations period. Furthermore, even assuming that they did, Princess failed to

address the “two-pronged ‘reasonable communicativeness’ test” that this court

employs “to determine under federal common law and maritime law when the

passenger of a common carrier is contractually bound by the fine print of a

passenger ticket.” Wallis v. Princess Cruises, Inc., 306 F.3d 827, 835 (9th Cir.

2002).

         Having failed to establish that it was entitled to a directed verdict on its

affirmative defense, Princess never shifted the burden to Edwards to “com[e]

forward with evidence to defeat the motion for summary judgment” on the defense.

Houghton, 965 F.2d at 1537. Hence, the district court erred in concluding that

“Edwards impermissibly rested on the allegations . . . in her Complaint” and that

Princess was therefore entitled to summary judgment on the contractual limitations

defense.

                                              B




                                              3
      Although we may affirm summary judgment on any ground supported by

the record, we decline to do so here because “we see no reason to decide ab initio

issues that the district court has not had an opportunity to consider and that present

questions of first impression in our circuit.” Badea v. Cox, 931 F.2d 573, 575 n.2

(9th Cir. 1991). Consequently, we remand to the district court to consider whether

Princess is entitled to summary judgment on any of the alternative grounds

presented in its motion for summary judgment. We also vacate the award of costs.

Solis v. County of Los Angeles, 514 F.3d 946, 958-59 (9th Cir. 2008).

      REVERSED and REMANDED.1




      1
        In light of the foregoing, we dismiss as moot Edwards’ appeal from the
denial of her motion for post-judgment relief pursuant to Federal Rules of Civil
Procedure 59 and 60. Noyes v. Kelly Servs., 488 F.3d 1163, 1174 (9th Cir. 2007).

                                           4
