                                                                           FILED
                            NOT FOR PUBLICATION                             APR 25 2013

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




                            FOR THE NINTH CIRCUIT



PATRICK BERRY, on behalf of himself              No. 11-55764
and all others similarly situated,
                                                 D.C. No. 3:10-cv-01358-H-CAB
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

WEBLOYALTY.COM, INC., a Delaware
corporation; MOVIETICKETS.COM,
INC., a Delaware corporation,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                      Argued and Submitted January 11, 2013
                               Pasadena, California

Before: O’SCANNLAIN and W. FLETCHER, Circuit Judges, and KORMAN,
Senior District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
      Plaintiff Patrick Berry appeals the district court’s dismissal of his suit for

failure to state a claim against Webloyalty.com and Movietickets.com. We vacate

and remand because Berry lacks Article III standing.

      “To invoke the jurisdiction of the federal courts,” Berry “must satisfy the

threshold requirement imposed by Article III of the Constitution by alleging an

actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).

To have constitutional standing under Article III, a party must demonstrate an

injury in fact that is traceable to the challenged action and that is likely to be

redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992). At the motion to dismiss stage, we accept as true all factual

allegations in the complaint and draw all reasonable inferences therefrom in the

nonmoving party’s favor. Ass’n for L.A. Deputy Sheriffs v. Cnty. of L.A., 648 F.3d

986, 991 (9th Cir. 2011). “[B]ecause issues of constitutional standing are

jurisdictional, they must be addressed whenever raised.” Pershing Park Villas

Homeowners Ass’n v. United Pacific Ins. Co., 219 F.3d 895, 899 (9th Cir. 2000).

      Berry has alleged no injury in fact sufficient to support Article III standing.

The record reveals Berry was fully compensated by Webloyalty.com for the $36.00

charged against his debit card. The $1.00 charge appearing in his account history

is clearly marked as a debit card authorization rather than as an actual charge.


                                            2
Berry has not shown that he incurred any other injury as a result of defendants’

actions.

      Because we hold that Berry lacks standing, we do not reach his other

contentions. We “vacate the district court’s order and remand with

instructions to dismiss without prejudice.” Fleck & Assocs. v. City of Phoenix, 471

F.3d 1100, 1106 (9th Cir. 2006).

      VACATED, and REMANDED with instructions.




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