Case 2:18-cv-00743-RAJ Document 34 Filed 03/15/19 Page 1 of 9

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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RENTBERRY, INC., a Delaware corporation;
and DELANEY WYSINGLE, an individual,

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Case No. 2:18-cv-00743-RAJ

Plaintiffs,

ORDER ON THE PARTIES’
CROSS-MOTIONS FOR
SUMMARY JUDGMENT

v.
CITY OF SEATTLE,

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Defendant.

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I.

INTRODUCTION

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This matter comes before the Court on the parties’ motions for summary judgment.

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Dkt. ## 22, 26. For the reasons below, the Court GRANTS Defendant’s motion and

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DENIES Plaintiffs’ motions.

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II. BACKGROUND

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Concerned about the effect of auctioning technology on their ability to find

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affordable housing, students at the University of Washington petitioned the Seattle City

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Council (the “City Council”) in January 2018. Dkt. # 27, ¶ 2; Dkt. # 27-1. They called on

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the City Council to enact legislation banning the use of “online bidding services” to set

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rent prices within its borders. Id.; Dkt. # 27-2. After considering the matter, the City

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Council passed Ordinance No. 125551 (the “ordinance”) in March 2018. Dkt. # 22-1. The

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ordinance adds Section 7.24.090 to the Seattle Municipal Code, which reads in part:

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“Landlords and potential tenants are prohibited from using rental housing bidding platform

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for real property located in Seattle city limits.” Dkt. # 22-1 at 6. The ordinance expires

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automatically after one year unless the City Council exercises its authority under Section

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7.24.090.C to extend the prohibition for an additional twelve months. Id. Section

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7.24.090.C permits an extension if Defendant City of Seattle requests more time to

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complete its study into the potential effects of auctioning technology on the Seattle rental

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market. Id.

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Plaintiff Rentberry, Inc. is a startup company that uses bidding technology to assist

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landlords and potential tenants in facilitating rental transactions.

Dkt. # 22-5, ¶ 2.

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Rentberry claims that it would open its website to Seattle property listings but for the

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ordinance. Id. Plaintiff Delaney Wysingle owns a rental property in Seattle. Dkt. # 22-4.

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He began remodeling his rental property in March 2018 and would ultimately like to use

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Rentberry to find a tenant. Id.

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On March 23, 2018, Plaintiffs filed a suit against the City of Seattle (the “City”) for

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declaratory and injunctive relief. Dkt. # 1. Plaintiffs claim the ordinance violates their

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right to free speech under the First and Fourteenth Amendments. Id. On August, 17, 2018,

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Plaintiffs moved for summary judgment. Dkt. # 22. On September 13, 2018, the City filed

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a cross-motion for summary judgment and a response to Plaintiffs’ motion. Dkt. # 26.

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Plaintiffs filed their response on October 4, 2018 and the City filed their reply on October

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18, 2018. Dkt. ## 29, 31.
III. LEGAL STANDARD

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Summary judgment is appropriate if there is no genuine dispute as to any material

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fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

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The moving party bears the initial burden of demonstrating the absence of a genuine issue

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of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving

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party will have the burden of proof at trial, it must affirmatively demonstrate that no

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reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty

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Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party

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will bear the burden of proof at trial, the moving party can prevail merely by pointing out

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to the district court that there is an absence of evidence to support the non-moving party’s

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case. Celotex Corp., 477 U.S. at 325. If the moving party meets the initial burden, the

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opposing party must set forth specific facts showing that there is a genuine issue of fact for

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trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

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(1986). The court must view the evidence in the light most favorable to the nonmoving

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party and draw all reasonable inferences in that party’s favor. Reeves v. Sanderson

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Plumbing Prods., 530 U.S. 133, 150-51 (2000).

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However, the court need not, and will not, “scour the record in search of a genuine

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issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see also, White

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v. McDonnel-Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (the court need not

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“speculate on which portion of the record the nonmoving party relies, nor is it obliged to

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wade through and search the entire record for some specific facts that might support the

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nonmoving party’s claim”). The opposing party must present significant and probative

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evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co.,

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952 F.2d 1551, 1558 (9th Cir. 1991).

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testimony” will not create a genuine issue of material fact. Villiarimo v. Aloha Island Air,

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Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); T.W. Elec. Serv. V. Pac Elec. Contractors Ass’n,

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809 F. 2d 626, 630 (9th Cir. 1987).

Uncorroborated allegations and “self-serving

IV. DISCUSSION

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The City argues in their motion that this case is not justiciable, and, in any event,

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the ordinance regulates nonexpressive conduct. Dkt. # 26 at 13-19. Plaintiffs claim in their

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motion that the ordinance cannot survive any First Amendment analysis. Dkt. # 22.

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A.

Standing

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On a motion for summary judgment, “a plaintiff must establish that there exists no

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genuine issue of material fact as to justiciability or the merits.” Dep’t of Commerce v. U.S.

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House of Representatives, 525 U.S. 316, 329 (1999). Accordingly, a plaintiff must support

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its allegations of injury by affidavit or evidence of specific facts. Snake River Farmers’

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Ass’n, Inc. v. Dep’t of Labor, 9 F.3d 792, 795 (9th Cir. 1993).

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Here, Plaintiffs assert that Wysingle suffered a concrete injury to his speech rights,

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as he is unable to solicit or receive bids for his rental property because of the ordinance.

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Dkt. # 29 at 2. To show that he has standing to seek an injunction, Wysingle filed a

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declaration stating that he intended to use Rentberry to advertise his property and would

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have done so but for the ordinance. Id. at 7. Plaintiffs also claim that Rentberry has

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standing because (i) it has a First Amendment interest in disseminating its proprietary

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software and (ii) it has third-party standing on behalf of its users. Id. at 11-13.

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In disputing standing, the City contends that Wysingle is not, nor has he ever been,

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a member of Rentberry; that he did not have a rental house ready to list at the time the

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Complaint was filed; and that he currently does not have a house ready to list on Rentberry.

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Dkt. # 26 at 15; Dkt. # 27-8 at 13-14; Dkt. # 31 at 1. Furthermore, because Wysingle rented

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out his property after the lawsuit was filed, the City argues that any potential claim he has

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is now moot. Dkt. # 26 at 16-17. As for Rentberry, the City claims that the ordinance only

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covers landlords and potential tenants, and thus does not cause Rentberry any injury. Id.

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at 17-18. According to the City, neither plaintiff has standing.

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To invoke the jurisdiction of the federal courts, a plaintiff must establish standing,

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which consists of three elements: (1) injury-in-fact; (2) causation; and (3) redressability.

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Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).

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challenges based on the First Amendment present unique standing considerations,”

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plaintiffs may establish injury in fact without first suffering a direct injury from the

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challenged restriction. Lopez v. Candaele, 630 F.3d 775, 783 (9th Cir. 2010); Ariz. Right

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to Life Political Action Comm. v. Bayless, 320 F.3d 1001, 1006 (9th Cir. 2003).

Because “[c]onstitutional

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When First Amendment plaintiffs sue before violating a statute, the Ninth Circuit

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looks at several factors in determining standing. These include whether plaintiffs have

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shown a reasonable likelihood that the government will enforce the challenged law against

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them; whether plaintiffs have established, with some degree of concrete detail, that they

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intend to violate the challenged law; and whether the challenged law is applicable to

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plaintiffs, either by its terms or as interpreted by the government. Lopez, 630 F.3d at 786;

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see also Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (requiring

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showing of “realistic danger”). Pleading the mere existence of a statute, which may or may

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not ever be applied to plaintiffs, is not sufficient to create a case or controversy within the

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meaning of Article III. Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 657 (9th Cir.

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2002) (quoting Stoianoff v. Montana, 695 F.2d 1214, 1223 (9th Cir. 1983)). Rather, a

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plaintiff must allege he or she “is immediately in danger of sustaining some direct injury

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as the result of the challenged official conduct and the injury or threat of injury is both real

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and immediate, not conjectural or hypothetical.” City of Los Angeles v. Lyons, 461 U.S.

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95, 102 (1983) (internal quotation marks and citations omitted). For injunctive relief,

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which Plaintiffs seek here, there must be a showing of a real or immediate threat of an

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irreparable injury. Cole v. Oroville Union High Sch., 228 F.3d 1092, 1100 (9th Cir. 2000)

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(internal quotations and citations omitted).
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Wysingle

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Wysingle argues the ordinance applies to landlords like him and restricts his ability

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to solicit or receive bids. Dkt. # 29 at 6-7. He claims this violates his First Amendment

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speech rights. Id. Wysingle adds that the declaration he submitted with the Complaint

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shows his intent to use Rentberry’s bidding platform and that the threat of enforcement is

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clear from the City’s website. Id. (citing Clark v. City of Lakewood, 259 F.3d 996, 1006

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(9th Cir. 2001)). Wysingle submits that these facts, taken together, demonstrate that he has

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standing for injunctive relief.

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The Court does not agree. The facts demonstrate that at the time the lawsuit was

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filed Wysingle was not a member of Rentberry and his rental house was under renovations.

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Dkt. # 30-1 at 4, 8. Even several months into the lawsuit, Wysingle testified that he could

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not say exactly when his rental home would be available and the best he could do was

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speculate. Dkt. # 30-1 at 3 (“I’m at the mercy of the contractors. They are very busy right

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now, and so as soon as they finish, I will list, I’m guessing by the end of the month.”). As

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the Ninth Circuit has explained, “some day” intentions without specificity do not support

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finding an “actual or imminent” injury. Thomas v. Anchorage Equal Rights Com’n, 220

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F.3d 1134, 1140 (9th Cir. 2000). Accordingly, Wysingle’s expressed intention to use

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bidding technology—if and when renovations are complete on his rental property, or if and

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when he joins Rentberry or some similar site—do not qualify as a concrete plan. Lopez,

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630 F.3d 775; Thomas, 220 F.3d at 1140 (explaining the landlords’ intent to violate law

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prohibiting discrimination based on marital status “if and when an unmarried couple

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attempts to lease one of their rental property” insufficient to confer standing).

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Plaintiffs nonetheless claim that Ninth Circuit’s decision in Clark v. City of

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Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001), warrants finding that Wysingle has standing

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here. The Ninth Circuit found in Clark that a cabaret owner whose business closed due to

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an ordinance had standing to seek an injunction. 259 F.3d at 1008. The alleged harm was

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actual and imminent because, despite the cabaret closing, the owner continued to hold all

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licenses needed to operate and stated unequivocally that he would go back into business if

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the ordinance were enjoined. Id.

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The Court finds the facts here distinguishable from those in Clark. The cabaret

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owner in Clark had been operating a business at the time of ordinance, had recently gone

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out of business because of the ordinance, and stated unequivocally that he would go back

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into business if the ordinance were enjoined. By contrast here, at the time of the lawsuit,

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Wysingle had never used a bidding platform to rent a property and his lone rental property

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was under renovations with no certain time for completion. Additionally, Wysingle had

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not created an account on Rentberry or another site that used bidding technology. Dkt. #

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30-1 at 8 (“I haven’t used Rentberry, so I don’t know how they lay it out. . . . I’m not a

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member on the website, so I don’t know what the layout is.”). Under these facts, the Court

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concludes that Wysingle’s claimed injury is not immediate and thus insufficient to seek

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injunctive relief.

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ii.

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Rentberry

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Rentberry claims that it has standing in its own right as well as third-party standing

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on behalf of its users. The Court disagrees because Rentberry has not shown injury in fact.

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Both traditional and third-party standing require a plaintiff to show an injury in fact.

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See, e.g., Sec. of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947 (1984)

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(explaining that the crucial issue is whether the plaintiff satisfies the “injury-in-fact”

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requirement before asserting the rights of third-party).

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generally requires some hindrance to a third-party in protecting its own rights, the Supreme

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Court has expressed a reluctance to strictly adhere to this requirement in the First

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Amendment context. Id. Nonetheless, the Supreme Court still requires an injury to the

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purported plaintiff. Id. There is no evidence before the Court to conclude that Rentberry

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meets this requirement.

While third-party standing

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On its face, the ordinance only applies to landlords and tenants and thus does not

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regulate Rentberry’s conduct. See Lopez, 630 F.3d at 788 (indicating that claims of future

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harm lack credibility when the challenged speech restriction by its terms is not applicable

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to the plaintiffs, or the enforcing authority has disavowed the applicability of the

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challenged law to the plaintiffs). The City’s interpretation of the ordinance further

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confirms its inapplicability to Rentberry. Dkt. # 28, ¶¶ 5, 6. Rentberry explains, however,

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that its auctioning technology “cannot be turned off,” and so it chose not to open its website

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to the Seattle market. Dkt. # 29 at 12. But again, the ordinance does not restrict Rentberry

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from operating within the city limits and self-censorship alone does not constitute injury

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for standing purposes. See Laird v. Tatum, 408 U.S. 1, 13 (1972) (subjective chill is not a

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substitute for objective harm or threat of future harm). Rentberry’s other purported

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injury—the right to disseminate its propriety software—is likewise not prohibited by the

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ordinance and is not supported by the facts.

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declaration or otherwise any of its business relationships or users impacted by the

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ordinance. Sec. of State of Md., 467 U.S. at 950-51 (third-party standing met where

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Indeed, Rentberry fails to specify by

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plaintiff identified specific customers impacted by state regulation and the impact of the

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regulation on the parties’ business relationships). Rentberry only declares that “Seattle is

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one of the key markets . . . since 42% of residents rent their homes.” Dkt. # 22-5 at 4. The

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Court finds Rentberry’s injury is speculative at best.

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Finally, Rentberry makes one last argument in support of standing—that it was

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specifically targeted by the ordinance and thus it is permitted to seek redress. Dkt. # 29 at

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13 (citing Melendres v. Arpaio, 695 F.3d 990, 999 (9th Cir. 2012)). However, this

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argument fails for the reason as the others do: Rentberry must still demonstrate an injury

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tied to the government regulation. See Melendres, 695 F.3d at (affirming plaintiffs had

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standing to bring constitutional claim where government policy targeted them for seizure

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in violation of the Fourth Amendment). For the reasons stated, the Court finds the injury

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in fact requirement has not been met. Because Rentberry fails to show that it has standing

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as a matter of law, its claim must be dismissed.

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B.

First Amendment

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Even assuming Plaintiffs had standing, their First Amendment claim would fail.

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Plaintiffs argue that the ordinance bans protected speech. The relevant provision reads:

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“Landlords and potential tenants are prohibited from using rental housing bidding

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platforms for real property located in Seattle city limits.” SMC § 7.24.090.A. Plaintiffs

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argue the ordinance infringes on their First Amendment right to communicate prices or

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post advertisements on a “rent-bidding website.” Dkt. # 29 at 13.

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“[R]estrictions on protected expression are distinct from restrictions on economic

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activity or, more generally, on nonexpressive conduct.” Sorrell v. IMS Health Inc., 564

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U.S. 552, 567 (2011). Accordingly, “the First Amendment does not prevent restrictions

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directed at commerce or conduct from imposing incidental burdens on speech.” Id. The

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“threshold question is whether conduct with a ‘significant expressive element’ drew the

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legal remedy or the ordinance has the inevitable effect of ‘singling out those engaged in

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expressive activity.’” Int’l Franchise Ass’n, Inc. v. City of Seattle, 803 F.3d 389, 408 (9th

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Cir. 2015).

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The Court finds the ordinance regulates conduct, not speech. It prohibits the use of

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a bidding platform to conduct a rental transaction, an activity which courts in this circuit

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have found to lack a significant expressive element. See, e.g., Airbnb, Inc. v. City and

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Cnty. of San Francisco, 217 F.Supp.3d 1066, 1076 (N.D. Cal. 2016) (finding short-term

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rental transaction lacks significant expressive element); Homeaway.com, Inc. v. City of

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Santa Monica, 2018 WL 1281772, at *5 (C.D. Cal. Mar. 9, 2018) (same); see also Int’l

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Franchise Ass’n, Inc., 803 F.3d at 409 (“A business agreement or business dealings

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between a franchisor and a franchisee is not conduct with a ‘significant expressive

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element.’”). To be sure, the ordinance makes clear that “[m]erely publishing a rental

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housing advertisement” does not transform a person or website to a “rental housing bidding

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platform.” Dkt. #22-1 at 6. It is also clear from the record that the ordinance was “not

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motivated by a desire to suppress speech” and does not have “the effect of targeting

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expressive activity.” Int’l Franchise Ass’n, Inc., 803 F.3d at 409; see also Simon &

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Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991) (noting

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movies, books, magazine articles, tape recordings as examples of classic expressive

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activity). Ultimately, the Court finds that the ordinance does not meet threshold conditions

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to require additional First Amendment analysis. The City is entitled to summary judgment.

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V. CONCLUSION

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For the reasons stated above, the Court GRANTS Defendant’s motion and DENIES
Plaintiffs’ motions. Dkt. ## 22, 26.

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DATED this 15th day of March, 2019.

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A

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The Honorable Richard A. Jones
United States District Judge

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