Evon v. Mickell

• Decision Date: 01 August 2012
• Docket Number: 10–17836.,Nos. 10–16615,s. 10–16615
• Citation: 83 Fed.R.Serv.3d 96,12 Cal. Daily Op. Serv. 8647,2012 Daily Journal D.A.R. 10581,688 F.3d 1015
• Parties: Catherine EVON, Plaintiff–Appellant, v. LAW OFFICES OF SIDNEY MICKELL and Sidney Mickell, Defendants–Appellees. Catherine Evon, Plaintiff–Appellee, v. John N. Dahlberg, Appellant, and Law Offices of Sidney Mickell, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

688 F.3d 1015

83 Fed.R.Serv.3d 96

12 Cal. Daily Op. Serv. 8647

2012 Daily Journal D.A.R. 10,581

Catherine EVON, Plaintiff–Appellant,

v.LAW OFFICES OF SIDNEY MICKELL and Sidney Mickell, Defendants–Appellees.

Catherine Evon, Plaintiff–Appellee,

v.John N. Dahlberg, Appellant,andLaw Offices of Sidney Mickell, Defendants.

Nos. 10–16615, 10–17836.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 16, 2012.

Filed Aug. 1, 2012.

Sergei Lemberg, Lemberg & Associates LLC, Stamford, CT, for the plaintiff-appellant.

John N. Dahlberg, Dillingham & Murphy, LLP, San Francisco, CA, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California, John A. Mendez, District Judge, Presiding. D.C. No. 2:09–cv–00760–JAM–KJN.

Before: BETTY B. FLETCHER, JOHN T. NOONAN, and RICHARD A. PAEZ, Circuit Judges.

OPINION

B. FLETCHER, Circuit Judge:

Both parties in this action appeal various rulings of the district court's summary judgment, class certification, attorney's fees, and sanctions orders. The principal issue is whether a debt collector may send collection notices addressed to the debtor, in “care of” the debtor's employer. We conclude that the answer is “no.”

Defendant Law Offices of Sidney Mickell sent a debt collection letter addressed directly to Plaintiff Catherine Evon in “care of” her employer. Evon filed a class action lawsuit alleging that Mickell's act of sending letters “care of” the class members' employers violated the Fair Debt Collection Practices Act's prohibition on communication with third parties. 15 U.S.C. § 1692c(b). She further alleged that the contents of the letter violated the Act's prohibition against “false, deceptive, or misleading representation[s].” § 1692e. Because Congress enacted the FDCPA to protect debtors from abusive debt collection practices, id., and because we have consistently interpreted the statute liberally to achieve that objective, Mickell's act of sending “care of” letters constitutes a per se violation of the FDCPA. We therefore reverse the district court's denial of Evon's class certification motion on that issue and remand for further proceedings. We agree, however, with the district court that the contents of the letter does not violate the Act and we therefore affirm the district court's denial of Evon's class certification motion in that regard.

I. BACKGROUND

Evon incurred a debt, which was assigned to Mickell for collection. As part of Mickell's collection efforts, a debt collector contacted Evon at home on several occasions. During a phone call between Evon and one of Mickell's debt collectors, Evon asked that she not be contacted at work. Nonetheless, either intentionally or by mistake, Mickell sent a debt collection letter to Evon's place of employment. The mailing address read:

Catherine Evon PERSONAL AND

CONFIDENTIAL

C/O Homeq Servicing

4837 Watt Ave # 100

North Highlands CA, 95660

One line below the mailing address read:

Creditor: CACH, LLC Our File Number:

xxxxxxxxxxxxxxxxx

Original Creditor: Maryland National Bank

Original Account Number: xxxxxxxxxxxxxxx

Balance: $xxxx.xx

The letter was placed in a window-style envelope and it is unclear whether a viewer could see this debt-related information.

The return address on the envelope read:

Law office of Sidney H. Mickell

5050 Palo Verde St., Ste. 113

Montclair, CA 91763

The letter was opened and read by various individuals, including people in the legal department, before it found its way to Evon. Id. The letter stated that Evon owed a debt and that failure to pay could result in legal action. Id.

On March 18, 2009, Evon filed suit alleging violations of the FDCPA. On July 13, 2009, Evon filed an amended class action complaint alleging that (1) Mickell's act of sending debt collection letters to the class members' workplaces was unlawful; and (2) the content of the letters violated the FDCPA because they included language that was false, misleading, deceptive or threatening.¹ Evon moved for partial summary judgment on the issue of liability and also moved for class certification. Mickell moved for summary judgment on all of Evon's claims and opposed the motion for class certification.

The district court denied Evon's motions for partial summary judgment and class certification. The district court granted Mickell's motion for summary judgment on the class claims finding that neither Mickell's act of sending letters to the plaintiffs' workplaces nor the content of the letters violated the FDCPA. But the district court denied summary judgment on the issue of whether Mickell violated the FDCPA by sending a letter to Evon's workplace, finding that fact issues existed as to whether the letter was sent in error.

After the district court rendered its decision, Evon accepted Mickell's Rule 68 offer of judgment on her individual claim. Pursuant to the judgment, Evon filed an application for attorney's fees and the district court held a hearing on the motion. Evon sought more than $90,000 in attorney's fees and costs and the district court awarded her $2,301.95. Evon timely appeals.

II. JURISDICTION

We begin by determining whether we have jurisdiction over Evon's appeal of the district court's summary judgment and class certification rulings.

Mickell first argues that there is no appellate jurisdiction over the district court's partial summary judgment rulings because those rulings did not dispose of the entire case. While it is true that “orders granting partial summary judgment, because they do not dispose of all claims, are not final appealable orders under section 1291,” Cheng v. Comm'r, 878 F.2d 306, 309 (9th Cir.1989), Evon does not argue that appellate jurisdiction arose after the district court's partial summary judgment rulings, but rather after the district court entered final judgment.

Mickell's next argument is that there is no appellate jurisdiction because the district court's judgment did not “incorporate or refer to the partial summary judgment rulings.” There is no requirement that the judgment must incorporate prior rulings to be considered final. This circuit takes a “pragmatic approach to finality in situations where events subsequent to a nonfinal order fulfill the purposes of the final judgment rule.” Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1075 (9th Cir.1994). In this case, a final judgment was entered on July 15, 2010, disposing of all the claims between the parties. “There is no danger of piecemeal appeal ... if we find jurisdiction here, for nothing else remains in the federal courts.” Anderson v. Allstate Ins. Co., 630 F.2d 677, 681 (9th Cir.1980).

Mickell's final jurisdictional argument is that by voluntarily dismissing her claims after the district court denied class certification,Evon extinguished her personal interest in the litigation, and therefore, no justiciable controversy remains to be heard on appeal. We recently considered this argument in Narouz v. Charter Communications.591 F.3d 1261 (9th Cir.2010) (addressing “the issue of whether a class representative who voluntarily settles his or her individual claims in a putative class action renders an appeal from a denial of class certification moot.”). There, the court considered two prior Supreme Court cases, United States ParoleCommission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), and Deposit Guaranty National Bank, Jackson Mississippi v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), that discussed a related question: whether a named plaintiff retained jurisdiction to appeal a denial of class certification after his or her claims involuntarily expired. Id. at 1264.Geraghty and Roper reasoned that in such cases, the class representative's ability to appeal the adverse class certification ruling depends on whether he or she maintains a personal stake in obtaining class certification defined as “an interest in spreading litigation costs and shifting fees and expenses to the other litigants with similar claims.” Id.; accord Pitts v. Terrible Herbst, 653 F.3d 1081, 1090 (9th Cir.2011) (noting that if the district court has denied class certification the class representative may nonetheless retain “either an individual economic interest in ‘shift[ing] part of the costs of litigation to those who will share in its benefits if the class is certified and ultimately prevails' or a private-attorney-general-like interest in having a class certified if the requirements of Rule 23 are met.”) (citations omitted). Our opinion in Narouz extended this principle to cases where the “class representative voluntarily settles his or her individual claims.” Id. (emphasis added). We explained that in order to retain a “personal stake” in the class certification ruling, a named plaintiff cannot contract away “any and all interests he or she may have had in class representation through a private settlement agreement.” Id. (citing Toms v. Allied Bond & Collection Agency, Inc., 179 F.3d 103, 105–06 (4th Cir.1999) (holding that the class representative had maintained no interest in a case where he expressly relinquished “any and all” claims “of any kind or nature whatsoever he may have individually” in addition to “any claims for attorney's fees, costs, or compensation as class representative, [and any claims] he may have as a member/representative of the putative class”)). Conversely, “a settlement agreement that specifically provides that the class representative is solely releasing individual claims may permit the class representative to retain a ‘personal stake’ in the class claim.” Id. (citing Richards v. Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C.Cir.2006) (holding that the named plaintiff maintained a personal stake when the settlement agreement released the defendant of “any and all individual claims that she might have” which were not “in derogation of ... Plaintiff's class claim”)). Whether we have jurisdiction over Evon's claim, therefore,...