Fanya Young v. Third and Mission Associates , 691 F. App'x 443 ( 2017 )

FILED
NOT FOR PUBLICATION
MAY 25 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FANYA YOUNG, Nos. 14-16926
15-15108
Plaintiff-Appellant,
D.C. No. 3:14-cv-03627-WHA
v.
THIRD AND MISSION ASSOCIATES, MEMORANDUM*
LLC, DBA The Paramount; RELATED
PROPERTY MANAGEMENT;
RELATED CALIFORNIA; KIMBALL
TIRFY & ST. JOHN LLP; RELATED
CO. INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted May 15, 2017**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: W. FLETCHER and TALLMAN, Circuit Judges, and HUCK,*** District
Judge.
Fanya Young appeals the district court’s dismissal of her complaint against
Defendants Third & Mission Associates (“TMA”), Related Property Co.
(“Related”), and Kimball, Tirey & St. John, LLP (“KTS”) (collectively,
“Defendants”), and the district court’s denial of her motion for sanctions against
KTS. Young also appeals the district court’s execution of her temporary
restraining order bond and award of $763 to TMA. We have jurisdiction under 28
U.S.C. § 1291 and we affirm.
1. The district court did not abuse its discretion in denying Young’s motion
for sanctions. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 409 (1990).
Young failed to comply with the “strict procedural requirements” to obtain
sanctions under Rule 11 because she did not serve a motion on Defendants and
provide them with at least twenty-one days to retract the pleading before seeking
sanctions from the court. Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 789 (9th
Cir. 2001).
2. Young’s complaint failed to state a claim and was appropriately
dismissed. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040
***
The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
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(9th Cir. 2011) (we review de novo a district court’s grant of a motion to dismiss
under Fed. R. Civ. P. 12(b)(6)).
First, Young alleged a claim under the Fair Credit Reporting Act (“FCRA”).
Her complaint, however, does not identify which provision of the FCRA
Defendants are alleged to have violated, but instead cites a provision of the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692e. The complaint lacks any
plausible allegations that Defendants reported her debt to any third parties.
Moreover, Young has forfeited any challenge to the district court’s dismissal of her
FCRA claims because she failed to offer any argument in her opening brief on
appeal. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Second, Young has failed to state a claim for relief for violations of
Department of Housing and Urban Development regulations as codified at 24
C.F.R. § 247. Young’s proffered exhibits do not “allow[] the court to draw the
reasonable inference,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), that her unit
was part of a “subsidized project” within the meaning of 24 C.F.R. § 247.2 and
thus that TMA was subject to the regulations set forth in 24 C.F.R. § 247.
Third, Young has failed to state a claim under the Fair Debt Collection
Practices Act (“FDCPA”). Young claims an attorney for KTS and alleged agent of
TMA, withheld or provided misleading information regarding Young’s outstanding
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balance and improperly applied late fees, and that Defendants violated 15 U.S.C. §
1692d. Young’s complaint does not include any factual allegations that could be
construed as harassment in violation of 15 U.S.C. § 1692d. Nor does Young
plausibly allege misrepresentations by Defendants. The exhibits attached to
Young’s complaint fail to evince the discrepancies she alleges and in fact
contradict some of the statements in her complaint. Young’s complaint also fails
to include allegations to support her claim that TMA acted improperly in imposing
late fees.
3. The district court did not err in executing Young’s bond. The district
court maintained jurisdiction to “suspend, modify, restore, or grant an injunction
on terms for bond or other terms that secure the opposing party’s rights” during the
pendency of Young’s appeal. Fed. R. Civ. P. 62(c). TMA was “wrongfully
enjoined” from evicting Young between August 12, 2014, when the district court
issued a temporary restraining order, and September 4, 2014, when the district
court lifted the order and denied Young’s motion for a preliminary injunction.
Nintendo of Am., Inc. v. Lewis Galoob Toys, Inc., 16 F.3d 1032, 1036 (9th Cir.
1994). TMA was therefore entitled to “provable damages,” which the district court
reasonably concluded equaled one month’s rent, or $763. See id.4
4. Young’s motions to “transmit physical and documentary exhibits” [Dkt.
#24, 30] are DENIED. Lowry v. Barnhart, 329 F.3d 1019, 1024-25 (9th Cir. 2003)
(appellate review is limited to the record before the district court).
AFFIRMED.
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