Avery v. First Resolution Management Corp.

• Decision Date: 02 April 2009
• Docket Number: No. 07-35726.,07-35726.
• Citation: 568 F.3d 1018
• Parties: Robin L. AVERY, Plaintiff-Appellant, v. FIRST RESOLUTION MANAGEMENT CORPORATION, a foreign corporation; First Resolution Investment Corporation, an unregistered entity; Derrick E. McGavic, Attorney; Kristin K. Finney, Attorney, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

568 F.3d 1018

Robin L. AVERY, Plaintiff-Appellant, v. FIRST RESOLUTION MANAGEMENT CORPORATION, a foreign corporation; First Resolution Investment Corporation, an unregistered entity; Derrick E. McGavic, Attorney; Kristin K. Finney, Attorney, Defendants-Appellees.

No. 07-35726.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2009.

Filed April 2, 2009.

Amended May 22, 2009.

Danny H. Gerlt, Portland, OR, for the plaintiff-appellant.

David A. Jacobs, Luvaas Cobb, Eugene, OR; Daniel N. Gordon P.C., Eugene, OR, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-06-01812-HA.

Before: SUSAN P. GRABER, RAYMOND C. FISHER and MILAN D. SMITH, JR., Circuit Judges.

ORDER AND AMENDED OPINION ORDER

The opinion filed April 2, 2009 is hereby amended to include the following footnote, placed at the end of the sentence statute of limitations as well as its tolling provisions, which have consistently been interpreted by New Hampshire courts to apply when defendants are absent from New Hampshire, not from any other state.>>. Avery v. First Resolution Mgmt., No. 07-35726, 561 F.3d 998, slip op. at 3978.

Text of the footnote:

petition for rehearing en banc, suggesting that our opinion overlooks the ramifications of allowing perpetual tolling against out-of-state debtors under New Hampshire's tolling provision. We do not purport to construe definitively the scope of New Hampshire's tolling provision or to determine conclusively its effect when lawsuits are filed outside New Hampshire courts. Rather, we address only the narrow statutory argument Avery has made: that under Oregon's choice of law regime, "the state" referred to in N.H. REV. STAT. ANN § 508:9 is Oregon when a lawsuit is filed in Oregon but New Hampshire law otherwise governs.

We express no opinion on arguments Avery did not raise, including, without limitation: (1) whether New Hampshire courts would construe N.H. REV. STAT. ANN. § 508:9 to allow perpetual tolling against an out-of-state defendant on a cause of action that could not, as a matter of law, be brought in New Hampshire courts, see 15 U.S.C. § 1692i (requiring debt collectors to bring action on debt against a consumer in the judicial district where the consumer signed a contract or where the consumer resides); or (2) whether a credit card agreement would be unconscionable under New Hampshire law if it led to perpetual tolling when the debt collector was free to sue the card holder at any time in the card holder's home jurisdiction.>>

The panel has unanimously voted to deny the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it. Fed. R.App. P. 35. Petitions for rehearing and rehearing en banc concerning the amended opinion will not be permitted. See Gen. Order 5.3(a).

Accordingly, with the filing of this amendment, the petition for rehearing en banc is DENIED.

OPINION

MILAN D. SMITH, JR., Circuit Judge:

Plaintiff-Appellant Robin L. Avery appeals the district court's grant of summary judgment in favor of Defendants-Appellees Derrick E. McGavic and Kristin K. Finney (collectively, the Attorneys) and the district court's denial of Avery's request for attorney's fees from Defendants-Appellees First Resolution Management Corporation and First Resolution Investment Corporation (collectively, First Resolution). Avery claims that the Attorneys attempted to collect a time-barred debt against her in violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p. She also claims that the district court's refusal to accept supplemental jurisdiction over First Resolution's counterclaim against her entitles her to attorney's fees as a prevailing party. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Avery, an Oregon resident at all relevant times, received an offer for a credit card from Providian National Bank (Providian) in July 2001. Avery applied for and received the card and used it to make several purchases. She received the billing statements at her Oregon residence and made payments on her card balance, the last of which was credited to her account on November 5, 2001. At that time, Avery's balance stood at $2,971.82. Under the terms of the credit card agreement, Avery was charged interest at 23.99% per annum on any unpaid balance. The agreement also provided that the laws of New Hampshire would apply in case of a dispute, regardless of Avery's actual residence, and contained an attorney's fee clause. Avery defaulted on her account and made no further payments after November 2001.

Providian assigned the account for collection, and First Resolution purchased the debt. On November 15, 2004, First Resolution sent Avery a notice identifying itself as the owner of the debt and indicating that the account information would be forwarded for collection to a lawyer in Avery's area if the debt was not resolved by December 6, 2004. Avery received a letter dated December 29, 2004, from McGavic, one of the Attorneys, informing her, as required by 15 U.S.C. § 1692(g) and (e)(11), that she could dispute her debt in writing and that First Resolution was considering filing suit. McGavic filed suit against Avery on behalf of First Resolution on February 9, 2006, in the Washington County Circuit Court of Oregon.

On the day the suit was filed, Avery disputed the debt and requested verification. Finney, the other of the Attorneys, responded to Avery's request for verification in May and provided Avery updates on the amount of the balance in June and August. On September 13, 2006, McGavic served Avery with a notice of intent to apply for an Order of Default Judgment. On September 20, Finney received notice that Avery was represented. The next day, Finney filed a motion to dismiss the underlying lawsuit without prejudice, allegedly because the Attorneys had concluded it would be best to avoid protracted litigation over such a small amount. The Attorneys denied that the reason they decided to dismiss the lawsuit was because Avery indicated her intention to pursue a statute of limitations defense.

Avery filed suit against First Resolution and the Attorneys on December 19, 2006, in the United States District Court for the District of Oregon. On January 31, 2007, First Resolution filed a counterclaim seeking to collect the debt due on Avery's account. Avery moved to dismiss the claim for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The Attorneys moved for summary judgment on Avery's FDCPA claim that they had illegally attempted to collect a time-barred debt, and Avery made a cross-motion for summary judgment, arguing that the underlying debt at issue was time-barred as a matter of law.

The district court found that the underlying debt was not time-barred and granted the Attorneys' motion for summary judgment, denying Avery's cross-motion for summary judgment on the same issue. The district court also declined to exercise supplemental jurisdiction over First Resolution's counterclaim and dismissed it accordingly, but did not award Avery attorney's fees. Avery appealed to this court.

STANDARD OF REVIEW

We review a district court's decision on cross-motions for summary judgment de novo. Arakaki v. Hawaii, 314 F.3d 1091, 1094 (9th Cir.2002). Summary judgment is appropriately awarded when, viewing the evidence in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the district court has correctly applied the underlying substantive law. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004).

We review the district court's denial of attorney's fees and costs for abuse of discretion. P.N. v. Seattle Sch. Dist., No. 1, 474 F.3d 1165, 1168 (9th Cir.2007). Elements of legal analysis and statutory interpretation underlying the district court's decision are reviewed de novo, and factual findings are reviewed for clear error. Id.

DISCUSSION

A. Summary Judgment to the Attorneys

Both parties agree that under the terms of the original agreement between Avery and Providian National Bank, New Hampshire law applies to this dispute. Under Oregon law, applied by the district court sitting in diversity, if a claim is based upon the law of another state, the limitations period of that state applies, as do the laws of that state governing tolling and accrual. OR. REV. STAT. §§ 12.430(1)(a), 12.440. Accordingly, because New Hampshire law covers First Resolution's claim against Avery, New Hampshire law also controls the applicable statute of limitations, as well as tolling and accrual provisions.

The New Hampshire statute of limitations for an action on a credit card is three years. N.H. REV. STAT. ANN. § 508:4. However, this statutory period is tolled if a defendant is absent from and residing out of the state at the time the cause of action accrued. Id. § 508:9 ("If the defendant in a personal action was absent from and residing out of the state at the time the cause of action accrued, or afterward, the time of such absence shall be excluded in computing the time limited for bringing the action."). Avery contends that "the state" referred to in the New Hampshire statute should be interpreted to mean "the forum state," in this case, Oregon, and not New Hampshire.

All available case law interpreting this statute suggests that its intent and purpose is to toll New Hampshire's statute of limitations when the defendant is not available to be served by a plaintiff suing in the state of New Hampshire. Bolduc v. Richards, 101 N.H. 303, 142 A.2d 156, 158 (N.H.1958) (holding that the statute of limitations is only tolled when a defendant could not otherwise be served in New Hampshire due to lack of personal jurisdiction); Quarles...