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McAdory v. M.N.S & Associates

United States District Court, D. Oregon

September 23, 2018

M.N.S. & ASSOCIATES, and DNF ASSOCIATES, LLC, foreign limited liability companies, Defendants.

          Kelly D. Jones KELLY D. JONES, ATTORNEY AT LAW Kevin A. Mehrens LAW OFFICE OF KEVIN A. MEHRENS Attorneys for Plaintiff

          Jordan 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


         Plaintiff 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.

         Plaintiff now moves for entry of judgment as to DNF under Federal Rule of Civil Procedure 54(b). I grant the motion.


         In 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.

         In 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, 2012).

         Next, 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, 2017).


         The 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.

         I agree 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 multiple-party action.

         Plaintiff 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.

         Moreover, 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.[1] 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 & ...

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