NOT FOR PUBLICATION FILED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.
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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
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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,
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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.
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