Marlet Jones v. Encore Credit Corp.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 16, 2018
• Docket: 17-56473
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 16 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARLET JONES, No. 17-56473

Plaintiff-Appellant, D.C. No. 5:16-cv-02673-JGB-KK

v. MEMORANDUM* ENCORE CREDIT CORP.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Submitted April 11, 2018**

Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.

Marlet Jones appeals pro se from the district court’s order dismissing her

action alleging federal and state law claims arising out of foreclosure proceedings.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Kwan v.

SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017) (dismissal under Fed. R.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Civ. P. 12(b)(6)); Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir.

2005) (res judicata). We may affirm on any basis supported by the record,

Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008), and we affirm.

Dismissal of the FDCPA claim was proper because Jones failed to allege

facts sufficient to show that defendants were debt collectors, or that they engaged

in debt collection activity. See Ho v. ReconTrust Co., 858 F.3d 568, 572 (9th Cir.

2017) (“[A]ctions taken to facilitate a non-judicial foreclosure . . . are not attempts

to collect ‘debt’ as that term is defined by the FDCPA.”); Schlegel v. Wells Fargo

Bank, NA, 720 F.3d 1204, 1208 (9th Cir. 2013) (complaint “must plead factual

content that allows the court to draw the reasonable inference” that defendant is a

“debt collector” as defined by the FDCPA (citation and internal quotation marks

omitted)).

The district court properly dismissed Jones’s remaining claims as barred by

the doctrine of res judicata because defendants were parties or in privity with

parties in prior actions. See Trujillo v. County of Santa Clara, 775 F.2d 1359,

1367 (9th Cir. 1985) (listing elements of res judicata under California law and

explaining that “[p]rivity . . . exists when a person [is] so identified in interest with

another that he represents the same legal right” (citation and internal quotation

marks omitted)).

The district court did not abuse its discretion by denying Jones’s motion for

2 17-56473 reconsideration under Federal Rules of Civil Procedure 60(b)(1), 60(b)(4), and

60(b)(6) because Jones failed to establish any basis for relief. See United States v.

Berke, 170 F.3d 882, 883 (9th Cir. 1999) (“A final judgment is ‘void’ for purposes

of Rule 60(b)(4) only if the court that considered it lacked jurisdiction, either as to

the subject matter of the dispute or over the parties to be bound, or acted in a

manner inconsistent with due process of law.”); Lehman v. United States, 154 F.3d

1010, 1017 (9th Cir. 1998) (setting forth standard of review and explaining that

Rule 60(b)(6) is to be used “sparingly as an equitable remedy to prevent manifest

injustice” (citation and internal quotation marks omitted)). Even if the district

court erred in not reconsidering the dismissal of Jones’s FDCPA claim on the basis

of res judicata, any such error was harmless because the claim failed on its merits.

See Fed. R. Civ. P. 61.

Denial of Jones’s motion for reconsideration under Federal Rule of Civil

Procedure 59(e) was not an abuse of discretion because a judgment had not yet

been entered. See Fed. R. Civ. P. 59(e); Balla v. Idaho State Bd. of Corr., 869 F.2d

461, 466 (9th Cir. 1989) (“Rule 59(e) clearly contemplates entry of judgment as a

predicate to any motion.” (citation omitted)). Even if the motion was construed as

a motion under Rule 60(b), the district court properly denied it because Jones

failed to establish any basis for relief. See Fed. R. Civ. P. 61; Lehman, 154 F.3d at

1017.

3 17-56473 The district court did not abuse its discretion by denying Jones’s motion for

leave to amend after concluding that amendment would be futile. See Chappel v.

Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (“A district court acts

within its discretion to deny leave to amend when amendment would be

futile . . . .”).

AFFIRMED.

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