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Catherine Evon v. Law Offices of Sidney Mickell and

August 1, 2012


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

The opinion of the court was delivered by: B. Fletcher, Circuit Judge:



D.C. No.2:09-cv-00760-JAM-KJN

Argued and Submitted

February 16, 2012-San Francisco, California

Before: Betty B. Fletcher, John T. Noonan, and Richard A. Paez, Circuit Judges.

Opinion by Judge B. Fletcher;

Dissent by Judge Noonan


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 misrepresentation[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.


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


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.*fn1 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.


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 "incorpo-rate 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 non-final 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).

[1] 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 Parole Commission v. Geraghty, 445 U.S. 388 (1980), and Deposit Guaranty National Bank, Jackson Mississippi v. Roper, 445 U.S. 326 (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, turns on the language of her settlement agreement.

Evon signed a Rule 68 offer of judgment that states:

Defendants Law Office of Sidney Mickell and Sidney Mickell, Esq. ("Defendants") hereby offer to allow judgment to be taken against them pursuant to Federal Rule of Civil Procedure 68 as follows:

1. Judgment in favor of Plaintiff and against both Defendants, inclusive, in the total amount of $1,010.99 (one thousand ten dollars and ninety nine cents).

2. The reasonable recoverable costs of the action now accrued as determined by the Court, together with a reasonable attorney's fee incurred through the date of this offer, as determined by the Court and including those fees and costs reasonably necessary to establish the amounts of the reasonable recoverable costs and reasonable attorney's fee pursuant to 15 USC § 1692k(a)(3).

This offer is not a concession or admission of liability on the part of defendants, or an admission or concession that Plaintiff has any damages. Defendants also do not concede or admit that Plaintiff has a right to appeal any prior ruling of this Court if she accepts this offer.

[2] While the language of the offer of judgment does not include an express reservation of Evon's right to pursue an appeal on behalf of the class, it is not so broad that it can be read to release her class claims. In cases where courts have found that a plaintiff has bargained away the right to appeal the class certification ruling, the language of the settlement agreement has made explicit reference to the class claims, thus clearly supporting that conclusion. Cf. Sanford v. MemberWorks, Inc., 625 F.3d 550, 557 (9th Cir. 2010) (dismissing class representative who relinquished " 'all claims, . . . whether class, individual, or otherwise, including any claim for costs, expenses, pre or post judgment interest, penalties, fees (including attorneys' fees, expert fees and consulting fees) . . . for any kind of relief whatsoever (including injunctive relief, monetary relief, damages, punitive damages, restitution, reimbursement, disgorgement, and economic injury)' " in settlement agreement); Toms v. Allied Bond & Collection Agency, Inc., 179 F.3d 103, 105-06 (4th Cir. 1999) (holding that plaintiff released both individual and class claim in settlement agreement that "expressly relinquished 'any and all' claims 'of any kind or nature whatsoever he may have individually . . . [and] 'any and all' monetary claims 'including any claims for attorney's fees, costs, or compensation as class representative, he may have as a member/representative of the putative class, which in any way are related to or arise from those matters pleaded' in this litigation."); Dugas v. Trans Union Corp., 99 F.3d 724, 728-29 (5th Cir. 1996) (finding lead plaintiff relinquished individual and class claims where settlement expressly referred to the class certification denial and plaintiff agreed to dismiss the entire "action" without any reservation of the right to appeal). When we compare Evon's agreement with the agreements in Sanford, Toms, and Dugas, we find that it is not an unqualified release of her class claims. Nowhere in the agreement is there a reference to "all claims" and no mention is even made of the class claims or the class certification ruling. Indeed, the agreement appears to contemplate that Evon will appeal, and if she does, preserves the jurisdictional question.

[3] Moreover, to the extent that the Rule 68 offer is ambiguous regarding whether Evon relinquished her class claims, we apply general principles of contract law to determine the meaning of the agreement. See Guerrero v. Cummings, 70 F.3d 1111, 1113 (9th Cir. 1995) ("[t]he usual rules of contract construction apply to interpreting the terms of a Rule 68 settlement offer. . .") (internal quotation marks and citation omitted). Thus, we may use the parol evidence doctrine to shed light on the meaning of language in a contract. See RESTATEMENT (SECOND) OF CONTRACTS §§ 212, 214(c) (1981) (stating that where the express terms of an integrated agreement are ambiguous, the court may determine the intended meaning of the contracting parties by considering the situation and relations of the parties, the subject matter of the transaction, preliminary negotiations and statements made therein, and the course of dealing between the parties). Here, our conclusion is further strengthened by comparing the language of the original Rule 68 offer, which Evon rejected, with the language of the agreement she ultimately accepted. The first offer stated:

Plaintiff's acceptance of Defendant's Offer of Judgment herein shall be deemed voluntary and shall operate as an express and complete release of any and all of Plaintiff's individual claims and all class-based interests in this litigation. Plaintiff's acceptance of Defendant's Offer of Judgment shall end this case . . .

Plaintiff agrees to take no appeal, and to seek no reconsideration or further review in this Court, or in the Court of Appeals, or in the United States Supreme Court, of any and all ruling, Orders, or findings made as of the date of acceptance, or thereafter, including but not limited to District Court's June 2, 2010 rulings denying (1) plaintiff's motion for class certification, her (2) motion for partial summary judgment, her (3) motion to reopen discovery, (4) the granting of defendant's motion for partial summary judgment . Evon rejected this offer which explicitly released all of her individual and class-based claims. Unlike the first offer, the second offer, which she accepted, makes no mention of the class-based claims and therefore, Evon cannot be said to have contracted away these claims.

Mickell argues that Evon could easily have preserved her right to appeal by rejecting its offer of judgment. Instead, Mickell argues, Evon chose to accept the Rule 68 offer. But Evon's choice should be understood in context: the district court in this case had only partially granted Mickell's motion for summary judgment-Evon's claim that Mickell violated the FDCPA by sending a letter to her workplace was proceeding to trial. At that point, her choices were: (1) go to trial; or (2) accept the Rule 68 offer and then appeal the resulting final judgment.*fn2 With respect to her first choice, during the course of the litigation, Evon abandoned her actual damages claim so even if she went to trial and won, the maximum recovery would be statutory damages which are capped at $1,000 plus costs and attorney's fees. The second offer was for just more than $1,000. By acceptance, she could avoid the expense of trial and the risk of recovering less than Mickell's Rule 68 offer. If she failed to accept the offer, the consequence could be no recovery of attorney's fees and even being saddled with Mickell's costs.*fn3 She chose to accept the second offer and pursue an appeal of the district court's rulings.

[4] In light of the considerations outlined above, Evon's class claims remain subject to appellate review.


(A) Standard of Review

The panel reviews a grant or denial of summary judgment de novo. Mark H. v. Hamamoto, 620 F.3d 1090, 1096 (9th Cir. 2010). "Summary judgment is to be granted only if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, show that there is no genuine issue as to a material fact, and the moving party is entitled to judgment as a matter of law." Legal Aid Servs. of Oregon v. Legal Servs. Corp., 608 F.3d 1084, 1093 (9th Cir. 2010).

In addition, the panel reviews a district court's interpretation of the FDCPA de novo. Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010).

(B) Analysis

(1) "Care of" Letters to Debtors' Employers

Evon alleges that Mickell's sending of debt collection letters to class members' places of employment without first obtaining their consent violates section 1692c(b) of the FDCPA.

That section states:

(b) Communication with third parties

Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if ...

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