Eric Noel v. Sandra Hall , 525 F. App'x 633 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 04 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ERIC NOEL, No. 12-35839
Plaintiff - Appellant, D.C. No. 3:99-cv-00649-AC
v.
MEMORANDUM *
SANDRA A. HALL, aka Sandra Johnson;
GABRIELLE S. LENNARTZ; HERB
WEISSER; MICHELLE A. MERCHANT;
MYRNA A. HALL, Trustee and personal
representative of the Estate of Brian C.
Hall, deceased,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Submitted May 31, 2013 **
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). We dismiss as moot the
parties’ cross-motions for summary disposition.
Before: PREGERSON and REINHARDT, Circuit Judges, and STROM, District
Judge.***
This appeal marks the third appearance before this court of the parties’ long-
running feud over a horse, a mobile home, and recorded telephone conversations.
See Noel v. Hall (Noel I), 341 F.3d 1148 (9th Cir. 2003); Noel v. Hall (Noel II),
568 F.3d 743 (9th Cir. 2009). Plaintiff Eric Noel appeals from the district judge’s
entry of summary judgment in favor of Defendants Sandra and Myrna Hall (the
latter as personal representative of the estate of Brian Hall) and Gabrielle Lennartz
(collectively, “Defendants”) on his claims alleging violations of the federal
Wiretap Act, 18 U.S.C. §§ 2510 et seq. The district judge issued a final judgment
in favor of these Defendants pursuant to Fed. R. Civ. P. 54(b), and we have
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
1. The district judge correctly held that Noel was not an “electronic
communication service” within the meaning of the Wiretap Act, 18 U.S.C.
§ 2510(15). Noel’s own evidence demonstrates that he simply arranged for
telephone service for three businesses (two equestrian-related, and a real estate
company) that he owned and/or operated. Further, even if he were an “electronic
communication service,” Noel did not store Defendants’ telephone calls “for
***
The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.
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purposes of backup protection of such communication” pursuant to the provision
of such service, as he must have for the tapes he recorded to constitute “wire
communications” forming the basis of a Wiretap Act violation by Defendants. 18
U.S.C. § 2510(1), (17)(B) (2000). Noel’s own affidavit states that he stored these
communications for his own use—not as part of any “backup protection” incident
to providing communications service. He offers only his own contradictory
statements to suggest otherwise.
2. The district judge also correctly determined that our ruling in Noel II
compels the conclusion that Defendants are entitled to summary judgment on
Noel’s Wiretap Act claims. Noel’s contention, that Noel II has been undermined
by the subsequent vacatur of a 1999 Washington state court decision, is meritless.
Our opinion did not rely on the state court’s factual or legal conclusions. See Noel
II, 568 F.3d at 751 & n.13 (noting that neither party asserted the binding effect of
the state court decision, and assuming arguendo facts inconsistent with it). In any
event, Noel himself concedes the factual basis of the state court decision: that he
recorded Defendants’ communications. His only argument that a different legal
result should prevail is that he himself was an “electronic communication
service”—a contention we reject above.
AFFIRMED.
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