                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 13 2011

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




                            FOR THE NINTH CIRCUIT



ALLOURE, INC., a California                      No. 10-55080
corporation,
                                                 D.C. No. 8:08-cv-00614-DOC-
             Plaintiff - Appellant,              RNB

  and
                                                 MEMORANDUM *
JALAL ALLEN MONSHIETEHADI, an
individual; ARMAN VAKILI, an
individual,

             Plaintiffs,

  v.

FA COOPERATIVE, INC., a Missouri
corporation, DBA Flooring America,

             Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                               Submitted June 9, 2011 **
                                 Pasadena, California

Before: BEEZER, TROTT, and RYMER, Circuit Judges.

       Alloure, Inc. appeals the district court’s grant of summary judgment to FA

Cooperative, Inc. (FAC). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

       As an initial matter, FAC has waived any argument that this action is barred

by res judicata by failing to raise it in district court. Rotec Indus., Inc. v.

Mitsubishi Corp., 348 F.3d 1116, 1119 (9th Cir. 2003). FAC’s strategic choice to

avoid raising res judicata in district court does not constitute an extraordinary

circumstance that justifies pursuing it for the first time on appeal. Id.

       Turning to Alloure’s arguments, whether the FAC bylaws required it to

exhaust FAC’s internal remedies before bringing suit is waived. Alloure

acknowledges that this argument was not expressly presented to the district court.

In fact, its position presumed the opposite interpretation of the bylaws. We do not

consider an argument on appeal that was not “raised sufficiently for the [district]

court to rule on it.” O’Rourke v. Seaboard Surety Co. (In re E.R. Fegert, Inc.), 887

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




          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Alloure’s arguments that exhaustion was excused are also waived. Alloure

did not raise in district court the issue of whether the appeal hearing was futile

because its business had already been destroyed. Instead, it argued the hearing was

futile because it had no chance to prevail due to the hostility of the hearing

committee. The ostensibly similar argument Alloure made in response to FAC’s

writ of mandate argument concerned inadequacy of remedy instead of futility, and

was made in response to a different basis for summary judgment. In any event, the

argument fails because the futility exception applies when a party “can positively

state that the agency has declared what its ruling will be on a particular case,” not

when some harm has already befallen the party. Jonathan Neil & Assocs., Inc. v.

Jones, 94 P.3d 1055, 1067 (Cal. 2004) (internal quotation marks and alteration

omitted).

      Alloure also did not raise in district court its argument that exhaustion is

excused because the hearing committee could not grant the appropriate relief of

damages. Nor did it raise whether the committee lacked jurisdiction. The closest it

came was arguing that a writ of mandate was not required because the committee

possessed no particular expertise. This is merely a subset of the appropriate relief

argument Alloure now advances, and it was raised in response to a different basis

for summary judgment. Regardless, the argument fails because exhaustion is

required even if the private remedies do not include damages. Westlake Cmty.
Hosp. v. Super. Ct., 551 P.2d 410, 415-16 (Cal. 1976). The policy considerations

in support of this rule are furthered by requiring exhaustion here: Alloure’s

participation would have given FAC more opportunity to minimize any damages,

the committee has expertise in the matters central to this dispute, and the record for

the district court would have been more developed had Alloure participated in the

hearing. See id.

      AFFIRMED.
