FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONIDES LORENZO CRUZ, successor
in interest to Herminia Lorenzo
Cruz,
Plaintiff-Appellee,
No. 09-17449
v.
INTERNATIONAL COLLECTION D.C. No.
5:08-cv-00991-JF
CORPORATION, a California
OPINION
corporation and CHARLES D.
HENDRICKSON, individually and in
his official capacity,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted
November 14, 2011—San Francisco, California
Filed March 8, 2012
Before: John T. Noonan and Carlos T. Bea, Circuit Judges,
and Donald E. Walter, Senior District Judge.*
Opinion by Judge Bea
*The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for Western Louisiana, sitting by designation.
2701
2704 CRUZ v. INTERNATIONAL COLLECTION CORP.
COUNSEL
Larry Rothman, Larry Rothman & Associates, Orange, Cali-
fornia, for the defendants-appellants.
Fred W. Schwinn, Consumer Law Center, Inc., San Jose, Cal-
ifornia, for the plaintiff-appellee.
OPINION
BEA, Circuit Judge:
Defendants-Appellants International Collection Corpora-
tion and Charles D. Hendrickson appeal the district court’s
grant of summary judgment in favor of plaintiff-appellee Her-
CRUZ v. INTERNATIONAL COLLECTION CORP. 2705
minia Lorenzo Cruz on her claim under the Fair Debt Collec-
tion Practices Act (FDCPA), 15 U.S.C. § 1692 and the district
court’s orders granting three of plaintiff ’s post-summary
judgment motions. The notice of appeal was untimely filed as
to the latter three post-summary judgment orders; we will dis-
miss these appeals for lack of jurisdiction.
In granting summary judgment for Cruz, the district court
held that there was no genuine issue of material fact but that
International Collection Corporation (ICC) had violated the
FDCPA and that Hendrickson was personally liable as ICC’s
sole owner, officer, and director because he qualified as a
“debt collector” under the FDCPA. We will affirm upon the
grounds stated by the district court. Accordingly, we affirm
the district court’s order granting summary judgment under
Federal Rule of Civil Procedure 56 for plaintiff.
I. Factual and Procedural Background
The relevant facts of this case are not in dispute. On April
15 and 16, 2006, Herminia Lorenzo Cruz wrote two checks to
Harrah’s Casino in Reno, Nevada. The checks bounced.
Sometime thereafter, Harrah’s assigned the claim based on
the dishonored checks to International Collection Corporation
(ICC) for collection. ICC sent a collection letter to Cruz on
October 19, 2006 seeking recovery of $500 in principal and
$25.47 in interest for a total of $525.47.
On October 27, 2006, Cruz sent a certified letter addressed
to ICC stating that she disputed the debt and refused to pay
the amount in question.
After receiving Cruz’s letter, ICC continued to communi-
cate with Cruz in an attempt to collect the debt. On October
31, 2006, ICC wrote a second collection letter to Cruz seeking
to collect $500 in principal, $27.11 in interest, and $50 in “re-
turn check fee(s).” This letter stated:
2706 CRUZ v. INTERNATIONAL COLLECTION CORP.
Our attorneys have advised us that under California
law 1719 Civil Code, states [sic] that unless cash or
certified funds in the amount of your NSF check(s)
plus the cost of $25 for each returned item is
received by us in 30 days from the date of this letter,
we are entitled to recover for our client, the amount
of the checks(s) [sic], plus treble damages up to
$1500 for each bad check.
If suit is filed, you will also be responsible for inter-
est, court costs, and service for process fees. The
court may also award us attorney fees.
Id.
On November 6, 2006, ICC sent Cruz a third letter stating
that Cruz owed $500 in principal and $27.93 in interest, but
nothing for a “return check fee,” for a total of $527.93. On
November 24, 2006, ICC sent Cruz a fourth letter stating that
Cruz owed $500 in principal, nothing for “treble damages,”
and $30.40 in interest for a total balance of $530.40.
On December 11, 2006, ICC sent Cruz a fifth letter stating
that Cruz owed $500 in principal, $1500 in treble damages,
and $32.72 in interest for a total balance of $2032.72. On
December 28, 2006, ICC sent Cruz a sixth letter stating that
Cruz owed $500.00 in principal, $1,500.00 in treble damages,
and $35.05 in interest for a total amount of $2,035.05. The
same day, Cruz mailed ICC a second letter stating that Cruz
disputed the debt and refused to pay.
On January 8, 2007, ICC sent Cruz a seventh letter stating
that Cruz owed $500.00 in principal, $1,500.00 in treble dam-
ages, and $36.56 in interest for a total of $2,036.56. This letter
stated all in capital letters: “WE HAVE SPENT A LOT OF
TIME AND MONEY TRYING TO REACH YOU. WE
NEED YOUR IMMEDIATE ATTENTION. THE SEVEN
YEARS THIS WILL REMAIN ON ALL THREE CREDIT
CRUZ v. INTERNATIONAL COLLECTION CORP. 2707
BUREAUS HAS FAR REACHING EFFECTS. WE URGE
YOU TO CONSIDER YOUR ACTIONS AND TELE-
PHONE US . . . .” Id.
On February 21, 2007, ICC sent Cruz an eighth letter stat-
ing that Cruz owed $500 in principal, $1,500 in treble dam-
ages, and $42.59 in interest for a total amount of $2,042.59.
This letter stated, again all in capital letters:
BEFORE COMMENCING A LAWSUIT
THROUGH THE OFFICES OF FRANKLIN LOVE,
I AM OFFERING YOU THIS FINAL OPPORTU-
NITY TO PAY THIS ACCOUNT IN FULL OR TO
MAKE SATISFACTORY PAYMENT ARRANGE-
MENTS.
IF PAYMENT OR SATISFACTORY ARRANGE-
MENTS ARE NOT MADE WITHIN 10 DAYS
HEREOF, I HAVE BEEN INSTRUCTED TO
CONSIDER FILING A LAWSUIT THROUGH
OUR LAWYER AGAINST YOU. SHOULD A
LAWSUIT BE INITIATED, YOU COULD BE
HELD TO PAY NOT ONLY THE PRINCIPAL
SUM, BUT ALSO INTEREST, ATTORNEY FEES
WHERE APPLICABLE AND COSTS OF SUIT.
MR. LOVE HAS STATED THAT SHOULD A
LAWSUIT BE FILED A JUDGMENT COULD BE
ISSUED, WHICH COULD HAVE THE CONSE-
QUENCE OF SUBJECTING CERTAIN OF YOUR
ASSETS TO GARNISHMENT OR SEIZURE. IN
ADDITION, THIS ENTIRE MATTER COULD
HAVE A NEGATIVE IMPACT ON YOUR
CREDIT RATING.
Id.
On February 19, 2008, Cruz filed suit in the Northern Dis-
trict of California alleging various violations of the FDCPA
2708 CRUZ v. INTERNATIONAL COLLECTION CORP.
and various associated state tort claims related to the collec-
tion attempt. The suit named as defendants ICC and Charles
D. Hendrickson (“the debt collectors”). Id. Hendrickson is,
and has always been, the sole owner, director, and officer of
ICC.
On July 31, 2009, Cruz filed a motion for summary judg-
ment. On the same day, the debt collectors filed a cross-
motion for summary judgment in their favor. In her response
to the debt collectors’ cross-motion for summary judgment,
Cruz waived her state tort claims. On September 30, 2009, the
district court granted summary judgment for Cruz and denied
the debt collectors’ cross-motion for summary judgment. The
district court held that the debt collectors had violated the
FDCPA by claiming in the communications to Cruz that ICC
was entitled to treble damages, interest, and legal fees under
California law, which was false because Nevada law applies
to the debt and Nevada law does not permit the collection of
interest and legal fees. The debt collectors timely filed a
notice of appeal 29 days later.
On October 9, 2009, Cruz filed a motion to alter or amend
the judgment to include statutory damages and attorney’s
fees. On December 18, 2009, the district court granted Cruz’s
motion to amend the judgment and awarded $1000 in statu-
tory damages under the FDCPA and reasonable attorney’s
fees and costs.
On April 7, 2010, Cruz moved for attorney’s fees. On June
17, 2010, the district court granted this motion in part, grant-
ing Cruz $22,656.17 in attorney’s fees and $2,854.81 in costs.
On November 22, 2010, the debt collectors filed a motion
to vacate and dismiss the action based on the fact that plaintiff
Herminia Lorenzo Cruz had died. On December 9, 2010,
Appellee filed a motion to substitute Leonides Lorenzo Cruz,
Herminia Lorenzo Cruz’s son and successor in interest, as
plaintiff and to amend the judgment nunc pro tunc. On Febru-
CRUZ v. INTERNATIONAL COLLECTION CORP. 2709
ary 8, 2011, the district court granted the motion to substitute
the plaintiff.
On March 14, 2011, the debt collectors filed an “amended
notice of appeal,” thirty-four days after the Feb. 8 order sub-
stituting the successor and amending the judgment. The
amended notice purported to amend the notice of appeal of
the Sept. 30 order to include appeals of the Dec. 18 order
(award of $1000 statutory damage award to Cruz), the June
17 order (award of attorney’s fees to Cruz), and the Feb. 8
order (substitution of plaintiff).
II. Jurisdiction and Standard of Review
This court has jurisdiction over final orders of the district
court under 28 U.S.C. § 1291. The parties do not dispute this
court’s jurisdiction to review the district court’s September
30, 2009 order granting summary judgment to Cruz and deny-
ing summary judgment to the debt collectors. The parties are
in dispute regarding this court’s jurisdiction over the other
three orders at issue based on the timeliness of the notice of
appeal, discussed below at Section V.
This court reviews de novo a district court’s summary judg-
ment ruling. Baccei v. United States, 632 F.3d 1140, 1144
(9th Cir. 2011). “In doing so, we must determine, viewing the
evidence in the light most favorable to the non-moving party,
whether there are any genuine issues of material fact and
whether the district court correctly applied the substantive
law.” Id. at 1145 (internal quotation marks and alterations
omitted).
III. The grant of summary judgment against ICC
The district court granted Cruz summary judgment on her
FDCPA claim, holding that Cruz’s cause of action was not
barred by the statute of limitations and that ICC’s letters to
Cruz violated the FDCPA by falsely claiming ICC was enti-
2710 CRUZ v. INTERNATIONAL COLLECTION CORP.
tled to interest and legal fees, although Nevada law does not
permit such a recovery. The debt collectors appeal these hold-
ings and also argue that they are entitled to an affirmative
defense that any violation of the FDCPA resulted from a bona
fide error.
A. ICC’s letters to Cruz violated the FDCPA.
[1] The FDCPA bars the use of any false, deceptive, or
misleading representation in connection with the collection of
any debt. 15 U.S.C. § 1692e.1 The FDCPA is a strict liability
statute; there is no mental state required to violate it. McCol-
lough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d
939, 948 (9th Cir. 2011); Clark v. Capital Credit & Collection
Serv., 460 F.3d 1162, 1175 (9th Cir. 2006). The FDCPA also
prohibits contacting a debtor who has “notified a debt collec-
tor in writing that the consumer refuses to pay a debt . . . .”
15 U.S.C. § 1692c(c).
ICC sent letters to Cruz claiming that Cruz was liable for
pre-judgment interest, fees, and treble damages. The parties
agreed at oral argument that Nevada law governs this debt,
and we assume, without deciding, that this is correct.2
1
Section 1692e states:
A debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any
debt. Without limiting the general application of the foregoing,
the following conduct is a violation of this section:
....
(2) The false representation of—
(A) the character, amount, or legal status of any debt; or
(B) any services rendered or compensation which may be law-
fully received by any debt collector for the collection of a debt.
2
The choice of law question might be complicated by the non-
enforceability of gambling debts in California. See Metropolitan Creditors
Service v. Sadri, 15 Cal. App. 4th 1821, 1827 (1993). However, because
we proceed based on both parties’ agreement that Nevada law governs, we
need not address this question here. Besides, the record does not establish
whether Cruz’s check was issued to repay a gambling debt or for the
delivery of gambling chips.
CRUZ v. INTERNATIONAL COLLECTION CORP. 2711
[2] Under Nevada law, a debt collector may not collect any
interest or fees unless the interest or fees have been added to
the principal by the creditor before the debt collector received
the item of collection. Nev. Rev. Stat. § 649.375(2)(a) (2011).
Here, there is no evidence that Harrah’s Casino added any
interest or fees to its claim for $500 before it assigned the
claim for collection to the debt collectors. For aught that
appears, ICC added those items to the claim. It was ICC who
sent Cruz numerous letters stating that Cruz owed varying
amounts for interest and fees in addition to $500 in principal.
As Nevada law does not permit ICC to add nor to collect such
interest and fees, the communications were false and mislead-
ing (by suggesting that ICC was entitled to collect such fees)
and violated the FDCPA. Nevada law also permits a creditor
to collect a maximum of $500 in treble damages for each
check written without sufficient funds on deposit. Nev. Rev.
Stat. 41.620(1) (2011). The fifth, sixth, seventh, and eighth
letters sent by ICC to Cruz stated that Cruz owed $1,500 in
treble damages, when the maximum ICC could have collected
would be $500 for each check, for a total of $1000.3
[3] Further, the FDCPA prohibits contacting a debtor who
has “notified a debt collector in writing that the consumer
refuses to pay a debt . . . .” irrespective of whether the state-
ment is false under state law or otherwise. 15 U.S.C.
§ 1692c(c). There are three limited exceptions to this prohibi-
tion. Id. As this court has explained, those exceptions are:
(1) to advise the consumer that the debt collector’s
further efforts are being terminated; (2) to notify the
3
Even if we held that California law governed this debt, some of the let-
ters sent by ICC also included statements false under California law. Cali-
fornia law permits a debt collector to recover either a service charge and
treble damages or pre-judgment interest, but not all three. Imperial Merch.
Servs. v. Hunt, 47 Cal. 4th 381, 384 (2009) (applied by this court in Impe-
rial Merch. Servs. v. Hunt, 580 F.3d 893, 894 (9th Cir. 2009)). ICC sent
letters to Cruz attempting to collect both interest and “return check fee(s),”
and also sent letters attempting to collect both treble damages and interest.
2712 CRUZ v. INTERNATIONAL COLLECTION CORP.
consumer that the debt collector or creditor may
invoke specified remedies which are ordinarily
invoked by such debt collector or creditor; or (3)
where applicable, to notify the consumer that the
debt collector or creditor intends to invoke a speci-
fied remedy.
Clark v. Capital Credit & Collection Services, Inc., 460 F.3d
1162, 1169 (9th Cir. 2006). A settlement offer is an example
of a “specified remedy.” See Lewis v. ACB Business Services,
Inc. 135 F.3d 389, 399 (6th Cir. 1998) (holding that a letter
that “can be construed as a type of settlement offer” fell
within the exception in § 1692c(c)(2)).
[4] In this case, Cruz sent a letter entitled “REFUSE TO
PAY LETTER” to ICC on October 27, 2006 stating, “I have
enclosed a copy of the last collection letter that you sent to
me. In this regard, please be advised that I dispute this debt
and refuse to pay.” She sent this letter certified mail, and Hen-
drickson signed to receive it on October 31, 2006. ICC contin-
ued to send Cruz letters after this. None fall under any of the
three exceptions. They were merely continued attempts to col-
lect. Therefore, ICC’s letters to Cruz also violated § 1692c(c)
of the FDCPA.
B. The debt collectors have waived the argument that
Cruz’s cause of action was barred by the statute of
limitations.
In the decision below, the district court rejected the debt
collectors’ argument that the FDCPA’s one-year statute of
limitations barred Cruz’s suit. See 15 U.S.C. § 1692k(d). On
this appeal, the debt collectors did not argue in their opening
brief that the statute of limitations barred Cruz’s suit. This
argument is waived. “We review only issues which are argued
specifically and distinctly in a party’s opening brief.” Green-
wood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (citing Miller
v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986)).
CRUZ v. INTERNATIONAL COLLECTION CORP. 2713
C. The debt collectors have waived any bona fide
error defense.
The debt collectors argue that they are not liable under
§ 1692e because they made a mistake at the time they sent the
collection letters as to which state’s law governed the debt.
They cite 15 U.S.C. § 1692k(c), which states that “[a] debt
collector may not be held liable in any action brought under
this title if the debt collector shows by a preponderance of
evidence that the violation was not intentional and resulted
from a bona fide error . . . .” This claim of bona fide error as
a defense was neither presented by evidence nor argued to the
district court. “To have been properly raised below, the argu-
ment must be raised sufficiently for the trial court to rule on
it.” Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th Cir.
2000) (internal quotations omitted). The argument was not
properly presented as a part of the motion for summary judg-
ment. See FRCP 56(a) (“A party may move for summary
judgment, identifying each claim or defense . . . on which
summary judgment is sought.” (emphasis added)). As a con-
sequence, the district court below did not address this argu-
ment at all. “The matter of what questions may be taken up
and resolved for the first time on appeal is one left primarily
to the discretion of the courts of appeals, to be exercised on
the facts of individual cases.” Singleton v. Wulff, 428 U.S.
106, 120-121 (1976). Because this argument was not raised in
the debt collectors’ motion for summary judgment below and
the district court did not decide it, this court declines to
resolve the question for the first time on appeal.
IV. The grant of summary judgment against
Hendrickson
The debt collectors also appeal the district court’s determi-
nation that Hendrickson is personally liable under the FDCPA
as a “debt collector” within the meaning of the statute. The
debt collectors argue that the claims against Hendrickson per-
sonally should have been dismissed because no evidence sup-
2714 CRUZ v. INTERNATIONAL COLLECTION CORP.
ports holding Hendrickson personally liable for any violation
of the FDCPA. We hold that Hendrickson is liable under the
FDCPA since he qualifies as a debt collector under the
FDCPA and that there is no triable issue of material fact but
that his personal acts were sufficient to render him personally
liable for violations of the FDCPA.
A. Hendrickson qualifies as a debt collector under the
FDCPA.
[5] Section 1692a(6) defines a “debt collector” for the pur-
poses of the FDCPA. A debt collector is “any person who
uses any instrumentality of interstate commerce or the mails
in any business the principal purpose of which is the collec-
tion of any debts, or who regularly collects or attempts to col-
lect, directly or indirectly, debts owed or due or asserted to be
owed or due another.” Id. We have previously held that an
individual working for a corporation may independently qual-
ify as a debt collector under the statute. Fox v. Citicorp Credit
Servs., 15 F.3d 1507, 1513 (9th Cir. 1994) (“Attorneys, like
all other persons, are subject to the definition of ‘debt collec-
tor’ in 15 U.S.C. § 1692a(6)”).
[6] Hendrickson is the sole owner, officer, and director of
ICC. ICC has been his sole employer since January 1986.
Hendrickson himself stated at a deposition that he “ha[s] to do
everything” for ICC, including “collection duties.” The vari-
ous duties that Hendrickson performed as ICC’s sole officer
and director qualify him as one “who uses any instrumentality
of interstate commerce or the mails in any business the princi-
pal purpose of which is the collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due another.” 15
U.S.C. § 1692a(6). Under Fox, Hendrickson qualifies as a
debt collector.
CRUZ v. INTERNATIONAL COLLECTION CORP. 2715
B. Hendrickson personally violated the FDCPA.
[7] The district court granted summary judgment for Cruz
and against Hendrickson, focusing its reasoning on the fact
that Hendrickson qualifies as a debt collector under the
FDCPA. As discussed above, we agree that Hendrickson so
qualifies. However, the fact that an individual qualifies as a
debt collector of course does not necessarily mean that the
individual is a debt collector who has violated the FDCPA;
the FDCPA does not prohibit merely qualifying as a debt col-
lector but instead prohibits debt collectors from taking certain
specific actions. 15 U.S.C. § 1692. The next question is
whether that debt collector has taken an action that violates
the FDCPA, such as “us[ing] any false, deceptive, or mislead-
ing representation or means in connection with the collection
of any debt.” 15 U.S.C. § 1692e. The inquiry is therefore a
two-step process, in which we must determine 1) whether the
individual qualifies as a debt collector, and 2) whether that
individual has taken an action that violates the FDCPA.4
Thus, Hendrickson’s liability turns on whether he took some
action sufficient to render him personally liable for ICC’s vio-
lations.
[8] The Ninth Circuit has not yet reached the issue of what
kind of action the officer of a debt collection company must
4
In addressing the individual liability under the FDCPA of officers
whose debt collecting companies have violated the Act, our sister circuits
have focused primarily on the first step, the resolution of whether or not
an officer of a debt collection company meets the definition of debt collec-
tor; this is a point on which they are divided. Compare Kistner v. Law
Offices of Michael P. Margelefsky, LLC, 518 F.3d 433, 437-38 (6th Cir.
2008) (“[S]ubjecting the sole member of an LLC to individual liability for
violations of the FDCPA will require proof that the individual is a ‘debt
collector,’ but does not require piercing of the corporate veil.”), with Pettit
v. Retrieval Masters Creditors Bureau, Inc., 211 F. 3d 1057, 1059 (7th
Cir. 2000) (“[Shareholders or employees of debt collection companies] do
not become ‘debt collectors’ simply by working for or owning stock in
debt collection companies . . . except perhaps in limited instances where
the corporate veil is pierced.”).
2716 CRUZ v. INTERNATIONAL COLLECTION CORP.
take to be personally liable under the FDCPA. There is an
open question whether, if an officer qualifies as a debt collec-
tor, that officer may be held personally liable based solely on
the action of serving in his role as officer of the company. We
need not reach this question in this case, however, as Hendr-
ickson himself was personally involved in at least one viola-
tion of the FDCPA present in this case.
[9] The record reflects that Hendrickson was not merely
the officer and owner of ICC, uninvolved in the collection
attempts against Cruz. Hendrickson explained in his deposi-
tion that ICC had a policy that letters to debtors were sent by
the person who signed the letter. An employee named Alex
Rogel was assigned to and had been handling Cruz’s debt,
and signed the first letter to Cruz. Despite this, when Cruz
sent ICC a certified letter disputing the debt and refusing to
pay, Hendrickson, not Rogel, signed to receive that letter on
October 31, 2006. Hendrickson also admitted at his deposition
that he signed Alex Rogel’s name to the fourth letter to Cruz,
sent on November 24, 2006. The signature on that letter
includes Hendrickson’s own initials “C.H.” after the signa-
ture.
[10] The fourth letter, like the other letters, falsely claims
that ICC is entitled to collect interest on the principal; in fact,
Nevada law only permits a debt collector to collect interest or
fees if the interest or fees have been added to the principal by
the creditor before the debt collector received the item of col-
lection. Nev. Rev. Stat. § 649.375(2)(a) (2011). Therefore, by
signing the letter, Hendrickson “use[d a] false, deceptive, or
misleading representation . . . in connection with the collec-
tion of [a] debt” and therefore violated § 1692e. As discussed
above, the ‘bona fide error’ defense is not properly before this
court. As discussed above, the fourth letter also violated
§ 1692c(c) because Cruz had refused to pay the debt in writ-
ing before the fourth letter was sent. Therefore, the district
CRUZ v. INTERNATIONAL COLLECTION CORP. 2717
court’s grant of summary judgment against Hendrickson is
affirmed.5
V. The three post-summary judgment orders
In addition to appealing the district court’s grant of sum-
mary judgment to plaintiffs, defendants also attempt to appeal
the Dec. 18, 2009 order amending the judgment to include
damages, the June 17, 2010 order granting Cruz attorney’s
fees, and the Feb. 8, 2011 order permitting the substitution of
Leonides Lorenzo Cruz for Herminia Lorenzo Cruz as plain-
tiff. Federal Rule of Appellate Procedure (FRAP) 3 and 4
state that a party wishing to appeal from the district court to
the court of appeals must file a notice of appeal with the dis-
trict court within 30 days after the judgment or order appealed
from is entered.6 If there has been no timely notice of appeal
from an order, a circuit court of appeal has no jurisdiction to
review that order. Browder v. Director, Dep’t of Corrections
of Illinois, 434 U.S. 257, 265 (1978). “It is the filing of a
notice of appeal that invokes our jurisdiction and establishes
the issues to be addressed. A timely notice of appeal from the
judgment or order complained of is mandatory and jurisdic-
tional.” Whitaker v. Garcetti, 486 F.3d 572, 585 (9th Cir.
2007). Even if neither party objects to an untimely notice of
appeal, we must raise the issue sua sponte. See Hostler v.
Groves, 912 F.2d 1158, 1160 (9th Cir. 1990).
[11] Because of the “mandatory and jurisdictional” nature
of notices of appeal, Whitaker, 486 F.3d at 585, the doctrine
of “relation back” that may apply to complaints does not
5
The district court’s reasoning differed from ours here. However, this
court may affirm the district court’s decision on any basis supported by the
record. United States v. State of Wash., 641 F.2d 1368, 1371 (9th Cir.
1981).
6
This rule applies in civil cases where the United States is not a party,
such as this one. FRAP 4 sets different time limits in other situations not
relevant here.
2718 CRUZ v. INTERNATIONAL COLLECTION CORP.
apply to an amended notice of appeal. Federal Rule of Civil
Procedure 15(c)(1) provides that amendments to a complaint
may “relate back” to the date of the original pleading if the
amended pleading arises “out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the origi-
nal pleading.” However, the failure to file a notice of appeal
differs from the expiration of many statutes of limitations: the
former necessarily deprives this court of jurisdiction, while
the latter does not always deprive this court of jurisdiction.7
For example, this court has recognized the Supreme Court’s
holding that AEDPA’s statute of limitations, 28 U.S.C.
§ 2244(d), is not jurisdictional. Lee v. Lampert, 653 F.3d 929,
933 (9th Cir. 2011). In contrast, as discussed above, the lack
of a timely filed (or timely amended) notice of appeal
deprives this court of jurisdiction. Whitaker, 486 F.3d at 585.
This difference is reflected in the respective Federal Rules
of Procedure governing complaints and notices of appeal.
Unlike Federal Rule of Civil Procedure (FRCP) 15, which
creates a standard based on whether the amendment arises out
of the same “conduct, transaction, or occurrence,” FRAP 3
and 4 establish a hard rule based on the number of days that
pass: a prospective appellant has 30 days to file a notice of
appeal. Nothing in the Federal Rules of Civil or Appellate
Procedure establishes any exception for notices of appeal
comparable to the doctrine of relation back for complaints.
[12] In this case, the debt collectors did not file their
“amended” notice of appeal adding any of these orders to the
original notice of appeal until March 14, 2011. This was 461
days after the Dec. 18, 2009 order, 280 days after the June 17,
7
Some statutes of limitations are jurisdictional. See, e.g. Adams v.
United States, 658 F.3d 928, 933 (9th Cir. 2011) (holding that the Federal
Tort Claims Act’s six month statute of limitations is jurisdictional). FRCP
(c)(1)(A) provides for such statutes by holding that relation back is permit-
ted only when “the law that provides the applicable statute of limitations
allows relation back.”
CRUZ v. INTERNATIONAL COLLECTION CORP. 2719
2010 order, and 34 days after the Feb. 8, 2011 order. Thus,
the amended notice of appeal was not a timely notice of
appeal for any of those three orders as it was more than 30
days after each order. Because there was no timely notice of
appeal for these orders, this court lacks jurisdiction to hear
appeals of the orders.
Though the debt collectors agree that it is a mandatory
requirement that the original notice of appeal be timely, they
argue that subsequent appeals are not “subject to this manda-
tory requirement.” The debt collectors argue that FRAP
4(a)(3) provides “additional time for filing cross or other sep-
arate appeals.” This argument lacks merit. FRAP 4(a)(3)
applies to appeals by “any other party” (emphasis added),
allowing other parties 14 days to file a notice of appeal after
a first party files a notice of appeal. See Bryant v. Technical
Research Co., 654 F.2d 1337, 1342 (9th Cir. 1981) (holding
that FRAP 4 did not prevent this court from considering a
protective appeal by the prevailing party below once this
court had jurisdiction based on a properly filed notice of
appeal by the losing party). Nothing in the rule allows one
party to file a second notice of appeal late merely because that
party had previously filed a first notice of appeal. Even if the
rule did permit a party to bootstrap its own second notice of
appeal, it would not apply to this case. The debt collectors
submitted the amended notice of appeal 511 days after their
first notice of appeal—substantially more than the 14 days
discussed in the rule.
[13] Therefore, this court lacks jurisdiction to review the
Dec. 18 order, the June 17 order, and the Feb. 8 order and the
portions of the appeal relating to those orders is dismissed.
VI. Conclusion
Because ICC sent letters to Cruz representing it was enti-
tled to collect interest and fees when governing Nevada law
did not permit ICC to collect interest and fees, ICC violated
2720 CRUZ v. INTERNATIONAL COLLECTION CORP.
the FDCPA and the district court properly granted summary
judgment in favor of Cruz. The grant of summary judgment
against ICC is therefore affirmed.
Further, because Hendrickson qualifies as a debt collector
and signed one of the false letters, he is personally liable for
violating the FDCPA. The district court’s grant of summary
judgment against him is therefore affirmed.
In addition, because there was no timely notice of appeal
regarding the district court’s Dec. 18 order, June 17 order, and
Feb. 8 order, the appeal with respect to those orders is there-
fore dismissed.
AFFIRMED IN PART, DISMISSED IN PART.