Meyer v. Portfolio Recovery Assocs., LLC

• Decision Date: 28 December 2012
• Docket Number: No. 11–56600.,11–56600.
• Parties: Jesse MEYER, an individual, on his own behalf and on behalf of all others similarly situated, Plaintiff–Appellee, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, a Delaware limited liability company, Defendant–Appellant, and Does, 1—100, inclusive, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

707 F.3d 1036

Jesse MEYER, an individual, on his own behalf and on behalf of all others similarly situated, Plaintiff–Appellee,

v. PORTFOLIO RECOVERY ASSOCIATES, LLC, a Delaware limited liability company, Defendant–Appellant,andDoes, 1—100, inclusive, Defendant.

No. 11–56600.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 2012.

Filed Oct. 12, 2012.

Amended Dec. 28, 2012.

Christopher W. Madel (argued) and Jennifer M. Robins, Robins, Kaplan, Miller & Ciresi LLP, Minneapolis, MN; Edward D. Lodgen and Julia V. Lee, Robins, Kaplan, Miller & Ciresi LLP, Los Angeles, CA, for Defendant–Appellant.

Ethan Preston (argued), Preston Law Offices, Phoenix, AZ; David C. Parisi and Suzanne Havens Beckman, Parisi & Havens LLP, Sherman Oaks, CA, for Plaintiff–Appellee.

Jan Chilton, Severson & Werson, San Francisco, CA, for Amici Curiae American Financial Services Association and California Financial Services Association.

Thomas Pinder, Washington, D.C., for Amicus Curiae American Bankers Association.

Appeal from the United States District Court for the Southern District of California, Anthony J. Battaglia, District Judge, Presiding. D.C. No. 3:11–cv–01008–AJB–RBB.

Before: D.W. NELSON, RAYMOND C. FISHER, and MORGAN CHRISTEN, Circuit Judges.

ORDER

The opinion filed on October 12, 2012, and appearing at 696 F.3d 943, is amended as follows:

On page 12258 of the slip opinion, replace the final two sentences of the third paragraph with the following language:

Pursuant to the FCC ruling, prior express consent is consent to call a particular telephone number in connection with a particular debt that is given before the call in question is placed. Id. at 564–65. PRA did not show a single instance where express consent was given before the call was placed. Id. at 565.

An amended opinion is filed concurrently with this order.

With this amendment, Judges Fisher and Christen vote to deny Appellant's petition for panel rehearing and rehearing en banc, filed on October 26, 2012, and Judge Nelson so recommends. The full court has been advised of the petition for rehearing and rehearing en banc and no judge requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and rehearing en banc is DENIED. No further petitions for en banc or panel rehearing shall be permitted.

OPINION

CHRISTEN, Circuit Judge:

Portfolio Recovery Associates, LLC (PRA) appeals the September 14, 2011 district court order granting Jesse Meyer's motion for a preliminary injunction and provisional class certification. Meyer's complaint alleged that PRA's debt collection efforts violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. The district court's preliminary injunction restrained PRA from using its Avaya Proactive Contact Dialer to place calls to cellular telephone numbers with California area codes that PRA obtained via skip-tracing.¹

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1292(a)(1). See also Paige v. State of Cal., 102 F.3d 1035, 1039 (9th Cir.1996). Having reviewed the record, we affirm.

We resolve several issues on appeal: (1) whether the district court had jurisdiction and authority to issue its September 14, 2011 order; (2) whether the district court abused its discretion by certifying a provisional class for purposes of the preliminary injunction; and (3) whether the district court abused its discretion in granting the preliminary injunction.

We review de novo whether a district court has authority to issue a preliminary injunction or class certification order; we review the exercise of that authority for abuse of discretion. Hunt v. Imperial Merch. Servs., Inc., 560 F.3d 1137, 1140 (9th Cir.2009). See also Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011); A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001) (amended). “An abuse of discretion will be found if the district court based its decision ‘on an erroneous legal standard or clearly erroneous finding of fact.’ ” Cottrell, 632 F.3d at 1131 (internal citation omitted). We look to “whether the district court reaches a result that is illogical, implausible, or without support in inferences that may be drawn from facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1262 n. 21 (9th Cir.2009) (en banc). Conclusions of law are reviewed de novo and findings of fact for clear error. Cottrell, 632 F.3d at 1131.

1. Jurisdiction/Authority

This appeal arises from Meyer's motion for a preliminary injunction preventingPRA, a debt collection service, from contacting debtors via their cellular telephone numbers in violation of the TCPA. Meyer also moved for provisional certification of a class of debtors who were contacted by PRA on their cellular telephones. At the conclusion of the hearing on Meyer's motion, Judge Anthony J. Battaglia orally indicated that it would be denied. A minute order entered June 23, 2011 also indicated that the motion would be denied, but the minute order stated that the court would prepare a written order. Meyer filed a notice of appeal from the June 23, 2011 minute order, but on September 14, 2011, Judge Battaglia entered a written order granting a preliminary injunction and provisionally certifying the class. Judge Battaglia signed another order dated September 13, 2011 transferring this matter to another district court judge who was presiding over an earlier-filed and related case. The transfer order was entered into the docket on September 19, 2011.

PRA argues on appeal that the June 23, 2011 notice of appeal divested the district court of jurisdiction to enter its September 14, 2011 order. We disagree. The district court's June 23, 2011 minute order was not a final appealable order. Ruby v. Sec'y of the U.S. Navy, 365 F.2d 385, 389 (9th Cir.1966). It did not clearly evidence the judge's intention that it would be the court's final act on the matter, Brown v. Wilshire Credit Corp. (In re Brown), 484 F.3d 1116, 1120 (9th Cir.2007); in fact, it expressly stated that a written order would follow. Accordingly, the June 23, 2011 notice of appeal was premature and had no operative effect. Jurisdiction remained in the district court as of September 14, 2011.

PRA also argues that Judge Battaglia lacked authority to preside over this case after September 13, 2011, the date he signed the transfer order. This argument is unavailing because the transfer order was not effective until it was entered into the docket on September 19, 2011 and the order granting the preliminary injunction and provisional class certification was entered on September 14, 2011. The transfer order did not impair Judge Battaglia's authority to enter the September 14, 2011 order granting a preliminary injunction and provisional class certification.

2. Provisional class certification

PRA argues the district court erred because the requirements of Federal Rule of Civil Procedure (FRCP) 23(a) were not met in this case. We conclude the district court acted within its discretion when it ruled that Meyer met the commonality, typicality, and adequacy requirements of FRCP 23(a) and did not abuse its discretion by granting provisional class certification.

Meyer has the burden of meeting the threshold requirements of FRCP 23(a). Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). The commonality and typicality requirements of FRCP 23(a) “tend to merge,” but they “[b]oth serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Id. at 2551 n. 5 (quotations and citation omitted). “All questions of fact and law need not be common to satisfy the [commonality requirement]. The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.1998) (amended). The common contention“must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 131 S.Ct. at 2551. “[R]epresentative claims are ‘typical’ if they are reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020.

The district court limited the provisional class in this case to all persons using a cellular telephone number that “(1) PRA did not obtain either from a creditor or from the Injunctive Class member; and (2) has a California area-code; or (3) where PRA's records identify the Injunctive Class member as residing in California.”

PRA argues that individualized issues of consent should have precluded a finding of typicality or commonality because some debtors might have agreed to be contacted at any telephone number, even telephone numbers obtained after the original transaction. But the Federal Communications Commission (FCC) issued a declaratory ruling clarifying the requirement for consent in the context of the TCPA that defeats PRA's argument. See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Request of ACA Int'l for Clarification and Declaratory Ruling, 23 FCC Rcd. 559, 565 (Jan. 4, 2008). Pursuant to the FCC ruling, prior express consent is consent to call a particular telephone number in connection with a particular debt that is given before the call in question is placed. Id. at 564–65. PRA did not show a single instance where express consent was given before the call was placed. Id. at 565.

PRA also argues that the class is overbroad because it may include debtors who provided...