David Tourgeman v. Nelson & Kennard ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID TOURGEMAN, No. 16-56190
Plaintiff-Appellant, D.C. No.
3:08-cv-01392-CAB-NLS
v.
NELSON & KENNARD, a partnership, MEMORANDUM*
Defendant-Appellee,
and
COLLINS FINANCIAL SERVICES, INC.,
DBA Precision Recovery Analytics, Inc., a
Texas corporation; COLLINS FINANCIAL
SERVICES USA, INC.; PARAGON WAY,
INC.; DELL FINANCIAL SERVICES, LP,
Defendants.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted June 7, 2018
Pasadena, California
Before: TALLMAN and NGUYEN, Circuit Judges, and BENNETT,** District
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Mark W. Bennett, United States District Judge for the
Judge.
David Tourgeman appeals the district court’s dismissal of his action under
the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Nelson & Kennard argues that we lack appellate jurisdiction under three
theories. We reject each in turn. First, the judgment is a final decision under 28
U.S.C. § 1291, even though judgment was not entered against Collins Financial
Services, Inc., Collins Financial Services USA, Inc., and Paragon Way, Inc. After
effectively disposing of all letter-based claims and the complaint-based class claim,
the district court dismissed Tourgeman’s remaining individual claim against “all
Defendants” with prejudice, and instructed the “Clerk of Court [to] terminate the
case.” As a practical matter, there was nothing left of Tourgeman’s action, and the
district court clearly understood that to be the case. Elliott v. White Mountain
Apache Tribal Court, 566 F.3d 842, 845–46 (9th Cir. 2009).
Second, Tourgeman did not manufacture appellate jurisdiction. The district
court dismissed the certified complaint-based class claim on the merits, and
Tourgeman properly finalized his appeal by voluntarily dismissing his remaining
individual claim with prejudice. See Amadeo v. Principal Mut. Life Ins. Co., 290
F.3d 1152, 1161 (9th Cir. 2002). Nelson & Kennard contends that Microsoft Corp.
Northern District of Iowa, sitting by designation.
2
v. Baker, 137 S. Ct. 1702 (2017), compels us to reach the opposite conclusion. We
disagree. That case involved a tentative adverse certification ruling under Federal
Rule of Civil Procedure 23, and is thus inapposite. Id. at 1712–15.
Third, Tourgeman did not moot his appeal by dismissing his individual
claim. “[T]he fact of certification will preserve a class’s standing even after the
named individual representatives have lost the required ‘personal stake[.]’”
LaDuke v. Nelson, 762 F.2d 1318, 1325 (9th Cir. 1985) (citing Sosna v. Iowa, 419
U.S. 393, 399 (1975)). Here the class was certified. Tourgeman’s appeal is not
moot.
2. The district court correctly held that Tourgeman lacked Article III
standing to bring his letter-based claims under Spokeo, Inc. v. Robins, 136 S. Ct.
1540 (2016). An alleged harm based on letters that Tourgeman never received,
saw, or even knew existed cannot satisfy Article III’s concreteness requirement.
See id. at 1548 (stressing that a “concrete” injury is “‘real,’ and not ‘abstract,’” and
“must be ‘de facto’; that is it must actually exist” (citations omitted)); Bassett v.
ABM Parking Servs. Inc., 883 F.3d 776, 783 (9th Cir. 2018).
Tourgeman asserts that there was a “risk of real harm” because it was only
by chance that he did not receive the letters. See Spokeo, 136 S. Ct. at 1549. But
this misconstrues Spokeo. To the extent there is a material risk of harm in this
context, it is that inaccurate debt-related information will “frustrate consumers’
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ability to chart a course of action in response to a collection effort,” Davis v.
Hollins Law, 832 F.3d 962, 963 (9th Cir. 2016) (citation omitted), even though that
harm “may be difficult to prove or measure,” Spokeo, 136 S. Ct. at 1549.
Tourgeman’s ability to respond to the collection letters was never undermined
because he never saw them. See Bassett, 883 F.3d at 783. Because Tourgeman
has merely “allege[d] a bare procedural violation, divorced from any concrete
harm, [he has failed to] satisfy the injury-in-fact requirement of Article III.”
Spokeo, 136 S. Ct. at 1549 (citations omitted).1
Costs are awarded to the Appellee. See Fed. R. App. P. 39(a)(2).
AFFIRMED.
1
In light of Spokeo, our prior holding that Tourgeman did have Article III standing
to bring his letter-based claims in Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d
1109, 1116 (9th Cir. 2014), is no longer good law. See Miller v. Gammie, 335 F.3d
889, 900 (9th Cir. 2003) (en banc).
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