United States District Court, D. Oregon
D. Jones KELLY D. JONES, ATTORNEY AT LAW Kevin A. Mehrens LAW
OFFICE OF KEVIN A. MEHRENS Attorneys for Plaintiff
M. New THE LAW OFFICE OF JORDAN MICHAEL NEW Brendan H. Little
LIPPES MATHIAS WEXLER FRIEDMAN LLP Attorneys for Defendant
DNF Associates, LLC
OPINION & ORDER
A. HERNANDEZ, UNITED STATES DISTRICT JUDGE
Jillian McAdory brings this Fair Debt Collection Practices
Act (FDCPA) action against Defendants M.N.S. & Associates
("M.N.S.") and DNF Associates, LLC
("DNF"), contending that M.N.S's conduct in
attempting to collect a consumer debt from Plaintiff violated
various provisions of the FDCPA, 15 U.S.C. §§
1692-1692p, and that DNF is vicariously and jointly liable
for M.N.S's actions. In a November 3, 2017 Opinion &
Order, I granted DNF's motion to dismiss after concluding
that as a matter of law, DNF was not a "debt
collector" as defined by the FDCPA. McAdory v.
M.N.S. & Assocs., No. 3:17-cv-00777-HZ, 2017 WL
5071263 (D. Or. Nov. 3, 2017), ECF 27. In a March 11, 2018
Opinion, I denied Plaintiff's motion to amend which I
construed as a motion for reconsideration of the November 3,
2017 Opinion. 2018 WL 1256482 (D. Or. Mar. 11, 2018), ECF 34.
On May 31, 2018, Plaintiff obtained an Order of Default
against M.N.S. ECF 39.
now moves for entry of judgment as to DNF under Federal Rule
of Civil Procedure 54(b). I grant the motion.
cases with multiple claims or parties, the court "may
direct entry of a final judgment as to one or more, but fewer
than all, claims or parties only if the court expressly
determines that there is no just reason for dely."
Fed.R.Civ.P. 54(b). "[I]n the interest of judicial
economy, Rule 54(b) should be used sparingly."
Gausvik v. Perez, 392 F.3d 1006, 1009 n.2 (9th Cir.
2004) (further stating that Rule 54(b) "was not meant to
displace the 'historical federal policy against piecemeal
appeals.'") (quoting Sears, Roebuck & Co. v.
Mackey, 351 U.S. 427, 438 (1956)). However, as the
Supreme Court recently explained, Rule 54(b) was adopted
"specifically to avoid the possible injustice of
delaying judgment on a distinctly separate claim pending
adjudication of the entire case." Gelboim v. Bank of
Am. Corp., ____U.S.____, 135 S.Ct. 897, 902 (2015)
(internal quotation marks and brackets omitted). Thus, the
Rule "aimed to augment, not diminish, appeal
opportunity." Id. at 902-03.
determining whether to enter a Rule 54(b) judgment, the
district court first analyzes whether it has rendered a
"final judgment," meaning a judgment that is
"an ultimate disposition of an individual claim entered
in the course of a multiple claims action."
Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1,
7 (1980) (internal quotation marks omitted); Wood v. GCC
Bend, LLC, 423 F.3d 873, 878 (9th Cir. 2005). Where the
case involves multiple parties rather than multiple claims,
"'party' has the same effect as
'claim.'" Birkes v. Tillamook Cty., No.
3:09-cv-1084-AC, 2012 WL 2178964, at *1 (D. Or. June 13,
the court must determine "whether there is any just
reason for delay." Wood, 422 F.3d at 878. The
district court has discretion to "determine the
appropriate time when each final decision in a multiple
claims action is ready for appeal."
Curtiss-Wright, 446 U.S. at 8. This discretion
"is to be exercised in the interest of sound judicial
administration." Id. (internal quotation marks
omitted). Factors relevant to this determination include
whether the claims finally adjudicated are "separable
from the others remaining to be adjudicated," and
whether "the nature of the claims already determined
[is] such that no appellate court would have to decide the
same issues more than once even if there were subsequent
appeals." Id. at 8; see also Wood, 422
F.3d at 878 n.2 (listing relevant factors as: (1) whether
certification would result in unnecessary appellate review;
(2) whether the claims finally adjudicated were separate,
distinct, and independent of any other claims; (3) whether
review of the adjudicated claims would be mooted by any
future developments in the case; (4) whether an appellate
court would have to decide the same issues more than once
even if there were subsequent appeals; and (5) whether delay
in payment of the judgment would inflict severe financial
harm). Finally, the district court should consider the
equities involved. Puri v. Khalsa, No.
3:10-cv-01532-MO, 2017 WL 6513055, at *1 (D. Or. Dec. 20,
Amended Complaint raises a single FDCPA claim brought against
both Defendants. Am. Compl. ¶¶ 21-22. The
allegations, however, show that the underlying conduct
alleged to support the actual FDCPA violation is attributable
to M.N.S. Id. ¶¶ 8-22. DNF, the purchaser
of the debt, allegedly contracted with M.N.S. to collect it.
Thus, Plaintiff seeks damages from M.N.S. for its conduct and
from DNF under a vicarious liability theory because DNF
itself did not directly interact with Plaintiff. The absence
of direct debt-collection conduct by DNF was the basis for
its motion to dismiss. As explained in my two prior opinions,
I agreed with DNF that as a debt purchaser which took no
affirmative collection activity toward Plaintiff itself, DNF
was not a "debt collector" under the FDCPA.
Furthermore, as I made clear in the second opinion, I
dismissed DNF with prejudice.
with Plaintiff that the March 11, 2018 Opinion & Order
denying Plaintiff's motion for leave to amend was a final
judgment. That Order re-affirmed that the only claim against
DNF was dismissed and it made clear that DNF's dismissal
was with prejudice. Thus, the Order was an ultimate
disposition of an individual party entered in the course of a
argues that considerations of judicial administrative
interests support entry of a Rule 54(b) judgment as to DNF.
She contends that the question for immediate appeal, whether
DNF is a debt collector under the FDCPA, is distinct and
severable from any other remaining issues to be decided in
the case. She notes that even if M.N.S. had not been
defaulted, there is no dispute that M.N.S. is a debt
collector under both prongs of 15 U.S.C. § 1692a(6)
because M.N.S. was collecting a debt from Plaintiff that was
owed to DNF. Thus, she contends that the issue of either
Defendant's status as a debt collector under the FDCPA
will not arise again in the context of this litigation in
this Court. Additionally, even if the issue arose as to
M.N.S., it would be determined based on facts unique to
M.N.S's conduct as distinct from those at issue in
assessing DNF's status.
she contends that failure to certify DNF's dismissal as
immediately appealable under Rule 54(b) creates the risk of
duplicative litigation. Without DNF in the case due to its
dismissal, Plaintiff will proceed with her claim against
M.N.S. and liability and damages against M.N.S. only would be
determined. If Plaintiff prevails on appeal as to her
claim against DNF, then DNF could re-litigate the liability
and damages issues upon remand to this Court. Thus, she
argues, without a Rule 54(b) judgment as to her claim against
DNF, multiple trials on the same issues could occur, creating
the risk of duplicative litigation as well as inconsistent
judgments. See U.S. Fidelity & ...