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


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  •                                                                            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    NOT FOR PUBLICATION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.
    2
    (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
    3
    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.
    5