                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 14 2010

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




                            FOR THE NINTH CIRCUIT



LAURA KROTTNER and ISHAYA                        No. 09-35823
SHAMASA, individually and on behalf of
all others similarly situated,                   D.C. No. 2:09-cv-00216-RAJ

              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

STARBUCKS CORPORATION, a
Washington Corporation,

              Defendant - Appellee.



JOSEPH LALLI, individually and on                No. 09-35824
behalf of all others similarly situated,
                                                 D.C. No. 2:09-cv-00389-RAJ
              Plaintiff - Appellant,

  v.

STARBUCKS CORPORATION, a
Washington Corporation,

              Defendant - Appellee.



                    Appeal from the United States District Court

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
                      for the Western District of Washington
                     Richard A. Jones, District Judge, Presiding

                       Argued and Submitted October 6, 2010
                               Seattle, Washington

Before: KOZINSKI, Chief Judge, and THOMAS and M. SMITH, Circuit Judges.

      Because the parties are familiar with the factual and procedural history of

this case, we do not recount additional facts except as necessary to explain the

decision. We have jurisdiction under 28 U.S.C. § 1291. In a separate opinion, we

hold that Plaintiffs-Appellants have standing to bring this suit under Article III of

the Constitution. Here, we hold that Plaintiffs-Appellants did not adequately allege

the elements of their state-law claims, and that certification is unnecessary. We

affirm.

      As an initial matter, our holding that Plaintiffs-Appellants pled an injury-in-

fact for purposes of Article III standing does not establish that they adequately pled

damages for purposes of their state-law claims. See Doe v. Chao, 540 U.S. 614,

624-25 (2004) (explaining that an individual may suffer Article III injury and yet

fail to plead a proper cause of action). Rather, Plaintiffs-Appellants must allege

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007). They have not done so here.




                                            2
      First, Plaintiffs-Appellants have not established a cognizable injury for

purposes of their negligence claim. Under Washington law, “[a]ctual loss or

damage is an essential element in the formulation of the traditional elements

necessary for a cause of action in negligence . . . . The mere danger of future harm,

unaccompanied by present damage, will not support a negligence action.” Gazija

v. Nicholas Jerns Co., 543 P.2d 338, 341 (Wash. 1975). The alleged injuries here

stem from the danger of future harm. Even Shamasa, the only plaintiff who claims

his personal information has been misused, alleges no loss related to the attempt to

open a bank account in his name. And Plaintiffs-Appellants have waived any

argument that Lalli’s alleged anxiety constitutes an actionable injury, as they did

not properly raise it in their opening brief before us. See Rattlesnake Coal. v. EPA,

509 F.3d 1095, 1100 (9th Cir. 2007). We therefore affirm the dismissal of their

negligence claim.

      Second, Plaintiffs-Appellants have not adequately alleged the existence of

an implied contract under Washington law.1 “Before a court can find the existence

of an implied contract in fact, there must be an offer; there must be an acceptance;



      1
         The district court dismissed this claim for failure to adequately allege a
cognizable injury. However, “[w]e may affirm on any basis supported by the
record, whether or not relied upon by the district court.” Hall v. N. Am. Van Lines,
Inc., 476 F.3d 683, 686 (9th Cir. 2007).

                                          3
the acceptance must be in the terms of the offer; it must be communicated to the

offeror; there must be a mutual intention to contract; [and] there must be a meeting

of the minds of the parties.” Milone & Tucci, Inc. v. Bona Fide Builders, Inc., 301

P.2d 759, 762 (Wash. 1956) (citation omitted). Plaintiffs-Appellants point to three

documents they claim formed an implied contract, but they do not allege that they

read or even saw the documents, or that they understood them as an offer. Nor do

they allege that they accepted the purported offer on its terms. To the contrary,

Plaintiffs-Appellants assert that they accepted a specific offer to encrypt and

otherwise safeguard their personal data even though the documents include no such

terms and only generally discuss access to confidential information. Plaintiffs-

Appellants therefore have not adequately pled the existence of an implied contract

under Washington law.

      Because the elements of negligence and breach of contract claims are

sufficiently clear under Washington law, there is no need to certify a question to

the Washington Supreme Court. See City of Houston, Tex. v. Hill, 482 U.S. 451,

471 (1987) (“It would be manifestly inappropriate to certify a question in a case

where, as here, there is no uncertain question of state law whose resolution might

affect the pending federal claim.”). Because we hold that Plaintiffs-Appellants

failed sufficiently to allege the elements of their claims, we need not address


                                           4
whether credit monitoring is an available remedy or whether the economic-loss

rule bars economic damages for purposes of the negligence claims.

      AFFIRMED.




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