Martha McNair v. Maxwell & Morgan Pc

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 25 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARTHA A. MCNAIR, an individual, No. 15-17383

Plaintiff-Appellant, D.C. No. 2:14-cv-00869-DGC

v. MEMORANDUM* MAXWELL & MORGAN PC, an Arizona professional corporation; CHARLES E. MAXWELL, husband; W. WILLIAM NIKOLAUS, husband; LISA MAXWELL, wife; LESLIE NIKOLAUS, wife,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Argued and Submitted September 14, 2017 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: BYBEE** and FRIEDLAND, Circuit Judges, and ARTERTON,*** District Judge.

Martha McNair appeals the district court’s grant of summary judgment in

her action under the Fair Debt Collection Practices Act (“FDCPA”) and the district

court’s denial of McNair’s motion for partial summary judgment. McNair alleged

that Defendants, including the law firm Maxwell & Morgan P.C., violated the

FDCPA in their efforts to collect unpaid homeowner association assessments and

other charges that she allegedly owed their client, the Neely Commons Community

Association. We reverse in part and remand, as set forth in the Opinion filed

together with this Memorandum Disposition, and affirm in part, as explained

below.

Under the FDCPA, a plaintiff must bring suit “within one year from the date

on which the violation occurs.” 15 U.S.C. § 1692k(d). Noting that Plaintiff’s

complaint was filed on April 24, 2014, while all but two of the alleged FDCPA

violations occurred prior to April 2013, the district court held that the pre-April

2013 claims were time-barred. Plaintiff urged the district court—and this Court—

** Following the retirement of Judge Kozinski, Judge Bybee was randomly drawn to replace Judge Kozinski on the panel. Judge Bybee has read the briefs, reviewed the record, and watched a video recording of the oral argument held on September 14, 2017. *** The Honorable Janet Bond Arterton, United States District Judge for the District of Connecticut, sitting by designation.

2 to hold that her pre-April 2013 claims were timely, either under the discovery rule,

or under the continuing violation doctrine. The district court concluded that neither

theory applied to Plaintiff’s claims, and we affirm.

Plaintiff argues that she did not discover her injury until her home was

foreclosed upon in January 2014, and that accordingly the discovery rule should

apply. Where the alleged violation of the Act is the filing of a lawsuit, “the statute

of limitations beg[ins] to run on the filing of the complaint . . . .” Naas v. Stolman,

130 F.3d 892, 893 (9th Cir. 1997). While “the discovery rule applies to FDCPA

claims[,]” in order to benefit from the rule, a plaintiff whose injury is the filing of a

lawsuit must show that she learned of the lawsuit only at some later date. See

Lyons v. Michael & Assocs., 824 F.3d 1169, 1173 (9th Cir. 2016) (“[T]he statute of

limitations could begin on the filing date where the alleged FDCPA violation is a

collection lawsuit” but under the discovery rule plaintiffs may “demonstrate that it

does not.”).

Here, all of the pre-April 2013 violations claimed by Plaintiff either

preceded or occurred as part of a court action. Plaintiff does not allege—and the

record does not reflect—that she only learned of the lawsuits on the date on which

her house was foreclosed upon, so she is not entitled to application of the discovery

rule as of the date of her January 2014 foreclosure.

Nor may Plaintiff avail herself of the continuing violation theory. Plaintiff

3 claims that Defendants subjected her to a continuing course of unfair collection

practices surrounding one debt, her unpaid homeowner association assessments. As

the district court correctly found, however, the alleged violations here constituted a

series of related but discrete acts rather than a continuing course of conduct. See

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002) (applying

continuing violation doctrine where “the incidents constituting a hostile work

environment are part of one unlawful employment practice”). And despite claiming

a continuing course of conduct from November 2009 through November 2013,

Plaintiff identifies no alleged violations whatsoever between December 2010 and

April 2012 or between June 2012 and May 2013.

The district court also rejected both of Plaintiff’s timely claims, that (1) in

judicial proceedings in 2013 and 2014, Defendants allegedly misrepresented the

amount of Plaintiff’s debt and sought attorneys’ fees to which they were not

entitled; and (2) in May through September of 2013, Defendants did not respond to

Plaintiff’s requests for a statement of the amount she owed. In the accompanying

Opinion, we reverse and remand on the first claim. With respect to the second

claim, we here affirm the district court’s grant of summary judgment.

“Whether conduct violates §§ 1692e or 1692f requires an objective analysis

that takes into account whether ‘the least sophisticated debtor would likely be

misled by a communication.’” Donohue v. Quick Collect, Inc., 592 F.3d 1027,

4 1030 (9th Cir. 2010) (quoting Guerrero v. RJM Acquisitions LLC, 499 F.3d 926,

934 (9th Cir. 2007)). On the record presented here, even the “least sophisticated

debtor” would not likely be misled by the communication—and lack of

communication—at issue here, as Plaintiff cannot have reasonably believed that

she had paid off the debt in question.

The district court’s order granting Defendants’ motion for summary

judgment and denying McNair’s motion for partial summary judgment is therefore

AFFIRMED IN PART.

Each party shall bear their own costs.