Jesse Meyer v. Portfolio Recovery Associates ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSE MEYER, an individual, on his 
own behalf and on behalf of all
others similarly situated,
Plaintiff-Appellee, No. 11-56600
v.
PORTFOLIO RECOVERY ASSOCIATES,
LLC, a Delaware limited liability  D.C. No.
3:11-cv-01008-
company, AJB-RBB
Defendant-Appellant, OPINION
and
DOES, 1-100, inclusive,
Defendant.

Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Argued and Submitted
May 10, 2012—Pasadena, California
Filed October 12, 2012
Before: Dorothy W. Nelson, Raymond C. Fisher, and
Morgan Christen, Circuit Judges.
Opinion by Judge Christen
12251
12254 MEYER v. PORTFOLIO RECOVERY
COUNSEL
Christopher W. Madel (argued) and Jennifer M. Robins, Rob-
ins, Kaplan, Miller & Ciresi LLP, Minneapolis, Minnesota;
Edward D. Lodgen and Julia V. Lee, Robins, Kaplan, Miller
& Ciresi LLP, Los Angeles, California, for the defendant-
appellant.
Ethan Preston (argued), Preston Law Offices, Phoenix, Ari-
zona; David C. Parisi and Suzanne Havens Beckman, Parisi
& Havens LLP, Sherman Oaks, California, for the plaintiff-
appellee.
MEYER v. PORTFOLIO RECOVERY 12255
OPINION
CHRISTEN, Circuit Judge:
Portfolio Recovery Associates, LLC (PRA) appeals the
September 14, 2011 district court order granting Jesse
Meyer’s motion for a preliminary injunction and provisional
class certification. Meyer’s complaint alleged that PRA’s debt
collection efforts violated the Telephone Consumer Protection
Act (TCPA), 47 U.S.C. § 227. The district court’s preliminary
injunction restrained PRA from using its Avaya Proactive
Contact Dialer to place calls to cellular telephone numbers
with California area codes that PRA obtained via skip-tracing.1
We have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1292(a)(1). See also Paige v. State of Cal., 102 F.3d 1035,
1039 (9th Cir. 1996). Having reviewed the record, we affirm.
We resolve several issues on appeal: (1) whether the dis-
trict court had jurisdiction and authority to issue its September
14, 2011 order; (2) whether the district court abused its dis-
cretion by certifying a provisional class for purposes of the
preliminary injunction; and (3) whether the district court
abused its discretion in granting the preliminary injunction.
We review de novo whether a district court has authority to
issue a preliminary injunction or class certification order; we
review the exercise of that authority for abuse of discretion.
Hunt v. Imperial Merch. Servs., Inc., 560 F.3d 1137, 1140
(9th Cir. 2009). See also Alliance for the Wild Rockies v. Cot-
trell, 632 F.3d 1127, 1131 (9th Cir. 2011); A&M Records, Inc.
v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)
(amended). “An abuse of discretion will be found if the dis-
trict court based its decision ‘on an erroneous legal standard
1
Skip-tracing is the process of developing new telephone, address, job
or asset information on a customer, or verifying the accuracy of such
information.
12256 MEYER v. PORTFOLIO RECOVERY
or clearly erroneous finding of fact.’ ” Cottrell, 632 F.3d at
1131 (internal citation omitted). We look to “whether the dis-
trict court reaches a result that is illogical, implausible, or
without support in inferences that may be drawn from facts in
the record.” United States v. Hinkson, 585 F.3d 1247, 1262
n.21 (9th Cir. 2009) (en banc). Conclusions of law are
reviewed de novo and findings of fact for clear error. Cottrell,
632 F.3d at 1131.
1. Jurisdiction/Authority
This appeal arises from Meyer’s motion for a preliminary
injunction preventing PRA, a debt collection service, from
contacting debtors via their cellular telephone numbers in vio-
lation of the TCPA. Meyer also moved for provisional certifi-
cation of a class of debtors who were contacted by PRA on
their cellular telephones. At the conclusion of the hearing on
Meyer’s motion, Judge Anthony J. Battaglia orally indicated
that it would be denied. A minute order entered June 23, 2011
also indicated that the motion would be denied, but the minute
order stated that the court would prepare a written order.
Meyer filed a notice of appeal from the June 23, 2011 minute
order, but on September 14, 2011, Judge Battaglia entered a
written order granting a preliminary injunction and provision-
ally certifying the class. Judge Battaglia signed another order
dated September 13, 2011 transferring this matter to another
district court judge who was presiding over an earlier-filed
and related case. The transfer order was entered into the
docket on September 19, 2011.
PRA argues on appeal that the June 23, 2011 notice of
appeal divested the district court of jurisdiction to enter its
September 14, 2011 order. We disagree. The district court’s
June 23, 2011 minute order was not a final appealable order.
Ruby v. Sec’y of the U.S. Navy, 365 F.2d 385, 389 (9th Cir.
1966). It did not clearly evidence the judge’s intention that it
would be the court’s final act on the matter, Brown v. Wilshire
Credit Corp. (In re Brown), 484 F.3d 1116, 1120 (9th Cir.
MEYER v. PORTFOLIO RECOVERY 12257
2007); in fact, it expressly stated that a written order would
follow. Accordingly, the June 23, 2011 notice of appeal was
premature and had no operative effect. Jurisdiction remained
in the district court as of September 14, 2011.
PRA also argues that Judge Battaglia lacked authority to
preside over this case after September 13, 2011, the date he
signed the transfer order. This argument is unavailing because
the transfer order was not effective until it was entered into
the docket on September 19, 2011 and the order granting the
preliminary injunction and provisional class certification was
entered on September 14, 2011. The transfer order did not
impair Judge Battaglia’s authority to enter the September 14,
2011 order granting a preliminary injunction and provisional
class certification.
2. Provisional class certification
[1] PRA argues the district court erred because the require-
ments of Federal Rule of Civil Procedure (FRCP) 23(a) were
not met in this case. We conclude the district court acted
within its discretion when it ruled that Meyer met the com-
monality, typicality, and adequacy requirements of FRCP
23(a) and did not abuse its discretion by granting provisional
class certification.
[2] Meyer has the burden of meeting the threshold require-
ments of FRCP 23(a). Wal-Mart Stores, Inc. v. Dukes, 131 S.
Ct. 2541, 2551 (2011). The commonality and typicality
requirements of FRCP 23(a) “tend to merge,” but they “[b]oth
serve as guideposts for determining whether under the partic-
ular circumstances maintenance of a class action is economi-
cal and whether the named plaintiff’s claim and the class
claims are so interrelated that the interests of the class mem-
bers will be fairly and adequately protected in their absence.”
Id. at 2551 n.5 (quotations and citation omitted). “All ques-
tions of fact and law need not be common to satisfy the [com-
monality requirement]. The existence of shared legal issues
12258 MEYER v. PORTFOLIO RECOVERY
with divergent factual predicates is sufficient, as is a common
core of salient facts coupled with disparate legal remedies
within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011,
1019 (9th Cir. 1998) (amended). The common contention
“must be of such a nature that it is capable of classwide reso-
lution — which means that determination of its truth or falsity
will resolve an issue that is central to the validity of each one
of the claims in one stroke.” Dukes, 131 S. Ct. at 2551.
“[R]epresentative claims are ‘typical’ if they are reasonably
co-extensive with those of absent class members; they need
not be substantially identical.” Hanlon, 150 F.3d at 1020.
The district court limited the provisional class in this case
to all persons using a cellular telephone number that “(1) PRA
did not obtain either from a creditor or from the Injunctive
Class member; and (2) has a California area-code; or (3)
where PRA’s records identify the Injunctive Class member as
residing in California.”
[3] PRA argues that individualized issues of consent
should have precluded a finding of typicality or commonality
because some debtors might have agreed to be contacted at
any telephone number, even telephone numbers obtained after
the original transaction. But the Federal Communications
Commission (FCC) issued a declaratory ruling clarifying the
requirement for consent in the context of the TCPA that
defeats PRA’s argument. See In the Matter of Rules & Regu-
lations Implementing the Tel. Consumer Prot. Act of 1991,
Request of ACA Int’l for Clarification and Declaratory Rul-
ing, 23 FCC Rcd. 559, 565 (Jan. 4, 2008). Pursuant to the
FCC ruling, prior express consent is deemed granted only if
the wireless telephone number was provided by the consumer
to the creditor, and only if it was provided at the time of the
transaction that resulted in the debt at issue. Id. at 564-65.
Thus, consumers who provided their cellular telephone num-
bers to creditors after the time of the original transaction are
not deemed to have consented to be contacted at those num-
bers for purposes of the TCPA.
MEYER v. PORTFOLIO RECOVERY 12259
[4] PRA also argues that the class is overbroad because it
may include debtors who provided express consent to be con-
tacted on their cellular telephones but whose telephone num-
bers were obtained via skip-tracing. But PRA does not point
to a single instance where a cellular telephone number that
had been given by the debtor to the original creditor was also
found by PRA via skip-tracing, and the evidence before the
district court suggested that cellular telephone numbers PRA
found via skip-tracing were unlikely to have been given to
PRA by the debtors. Specifically, PRA’s securities filing
shows that PRA’s practice was to first attempt to contact debt-
ors via the information received from creditors and only resort
to skip-tracing if the debtors could not be reached using such
information. Given this record, it was reasonable for the dis-
trict court to find that cellular telephone numbers obtained via
skip-tracing had not been given to the creditors in the course
of the underlying consumer transactions.
[5] PRA also argues that Meyer failed to satisfy the
requirements of FRCP 23(a) because Meyer was not an ade-
quate class representative due to convictions for offenses
involving dishonesty and because he has used multiple names
in the past. PRA argues that the district court did not analyze
Meyer’s personal credibility and integrity. We conclude the
district court acted within its discretion when it provisionally
decided Meyer was an adequate class representative. The dis-
trict court did consider PRA’s argument that Meyer’s criminal
record included convictions for deceptive conduct, but it also
considered that Meyer’s convictions were from 1998 and
2001, more than 10 years ago,2 and that Meyer had since
taken positive steps in his life, including his graduation from
the University of California. On this record we cannot say the
district court abused its discretion by accepting Meyer as a
provisional class representative.
2
See Fed. R. Evid. 609(b).
12260 MEYER v. PORTFOLIO RECOVERY
PRA also argues that the district court lacked authority to
certify a provisional class pursuant to FRCP 23(b)(2) because
that rule only provides for final, not preliminary, injunctive
relief.
[6] FRCP 23(b) states, “A class action may be maintained
if Rule 23(a) is satisfied and if . . . the party opposing the
class has acted or refused to act on grounds that apply gener-
ally to the class, so that final injunctive relief or correspond-
ing declaratory relief is appropriate respecting the class as a
whole.” The plain language of FRCP 23(b)(2) does not
restrict class certification to instances when final injunctive
relief issues; it only requires that final injunctive relief be
appropriate. PRA did not show the district court incorrectly
interpreted or applied FRCP 23(b)(2).
3. Preliminary injunction
[7] Generally, a party seeking a preliminary injunction
must demonstrate: (1) a likelihood of success on the merits;
(2) that he is likely to suffer irreparable harm in the absence
of preliminary relief; (3) that the balance of equities tips in his
favor; and (4) that an injunction is in the public interest. Win-
ter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
[8] PRA first argues the district court erred by finding that
Meyer demonstrated a likelihood of success on the merits. We
disagree. The three elements of a TCPA claim are: (1) the
defendant called a cellular telephone number; (2) using an
automatic telephone dialing system; (3) without the recipi-
ent’s prior express consent. 47 U.S.C. § 227(b)(1). The term
“automatic telephone dialing system” means “equipment that
has the capacity — (A) to store or produce telephone numbers
to be called, using a random or sequential number generator;
and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). PRA
argues that its dialers do not have the present capacity to store
or produce numbers using a random or sequential number
generator. As we explained in Satterfield v. Simon &
MEYER v. PORTFOLIO RECOVERY 12261
Schuster, Inc., the clear language of the TCPA “mandates that
the focus must be on whether the equipment has the capacity
‘to store or produce telephone numbers to be called, using a
random or sequential number generator.’ ” 569 F.3d 946, 951
(9th Cir. 2009). PRA’s securities filing shows that PRA uses
predictive dialers. PRA does not dispute that its predictive
dialers have the capacity described in the TCPA. This is suffi-
cient to determine that PRA used an automatic telephone dial-
ing system. See id. (“[A] system need not actually store,
produce, or call randomly or sequentially generated telephone
numbers, it need only have the capacity to do it.”).
[9] The FCC further defined “automatic telephone dialing
system” to include predictive dialers. See In the Matter of
Rules and Regulations Implementing the Tel. Consumer Prot.
Act of 1991, 18 FCC Rcd. 14014, 14091-93 (July 3, 2003).
“[A] predictive dialer is equipment that dials numbers and,
when certain computer software is attached, also assists tele-
marketers in predicting when a sales agent will be available
to take calls. The hardware, when paired with certain soft-
ware, has the capacity to store or produce numbers and dial
those numbers at random, in sequential order, or from a data-
base of numbers.” Id. at 14091. “As one commenter points
out, the evolution of the teleservices industry has progressed
to the point where using lists of numbers is far more cost
effective. The basic function of such equipment, however, has
not changed — the capacity to dial numbers without human
intervention.” Id. at 14092. PRA’s predictive dialers fall
squarely within the FCC’s definition of “automatic telephone
dialing system.”
PRA argues that the FCC did not have the authority to
define predictive dialers as “automatic telephone dialing sys-
tems” and that the regulation reflecting this definition is there-
fore invalid. But PRA did not raise this argument in the
district court and it did not argue any exception to the rule that
arguments not raised before the district court are waived. Bac-
12262 MEYER v. PORTFOLIO RECOVERY
cei v. United States, 632 F.3d 1140, 1149 (9th Cir. 2011). We
therefore deem this argument waived.
PRA failed to argue in the district court that Meyer’s
motion should have been denied for failure to demonstrate
that the injury in this case was caused by something against
which the TCPA was designed to protect, that is, use of an
automatic telephone dialing system to contact consumers via
their cellular telephones without their consent. This argument
is also deemed waived. Id. Moreover, even if the argument
had not been waived, as discussed below, the TCPA was
designed to protect against the types of calls at issue in this
case. See Satterfield, 569 F.3d at 954.
PRA argues that the district court erred by using the wrong
legal standard when it decided Meyer did not need to show
irreparable harm in order to obtain a preliminary injunction.
The district court’s order was premised on Ninth Circuit case
law approving injunctions without a showing of irreparable
harm when they are sought to prevent violations of federal
statutes that specifically provide for injunctive relief. See,
e.g., United States v. Estate Pres. Servs., 202 F.3d 1093, 1098
(9th Cir. 2000); United States v. Odessa Union Warehouse
Co-op, 833 F.2d 172, 175 (9th Cir. 1987); Navel Orange
Admin. Comm. v. Exeter Orange Co., Inc., 722 F.2d 449, 453
(9th Cir. 1983).
In eBay, Inc. v. MercExchange, LLC, the Supreme Court
disapproved of the use of “categorical” rules regarding irrepa-
rable harm in patent infringement cases, concluding that such
a rule “cannot be squared with the principles of equity
adopted by Congress.” 547 U.S. 388, 393 (2006). In Flexible
Lifeline Systems, Inc. v. Precision Lift, Inc., our Circuit
applied eBay’s rule to a request for injunctive relief in a copy-
right infringement claim, reversing the Circuit’s “long-
standing precedent finding a plaintiff entitled to a presump-
tion of irreparable harm on a showing of likelihood of success
on the merits in a copyright infringement case.” 654 F.3d 989,
MEYER v. PORTFOLIO RECOVERY 12263
998 (9th Cir. 2011). Our Circuit has not yet determined
whether irreparable harm must be shown in order to obtain
injunctive relief in all types of cases, but at least one decision
post-eBay but pre-Flexible Lifeline reiterated the premise that
“[t]he standard requirements for equitable relief need not be
satisfied when an injunction is sought to prevent the violation
of a federal statute which specifically provides for injunctive
relief.” Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d
1165, 1175-76 (9th Cir. 2010).
[10] In order to resolve this case, we need not decide
whether to extend Flexible Lifeline to TCPA claims, because
we conclude that Meyer demonstrated irreparable harm under
the traditional four-part test. We reach this conclusion in the
first instance because Meyer argued before the district court
that he and other class members will suffer irreparable harm
from PRA’s continuing violations of the TCPA, which violate
the class members’ right to privacy, and because the district
court found in its written order that PRA would continue to
violate the TCPA if an injunction was not issued. Cf. Flexible
Lifeline, 654 F.3d at 1000 (declining to affirm the district
court’s grant of a preliminary injunction because the district
court presumed irreparable harm without making factual find-
ings that would support a finding of likelihood of irreparable
harm). We have little difficulty concluding the record sup-
ports the district court’s finding that PRA would have contin-
ued to violate the TCPA if an injunction had not been issued.
Between February 1 and March 31, 2011, PRA called 46,657
cellular telephone numbers with California area codes PRA
obtained via skip-tracing. In response to Meyer’s motion for
a preliminary injunction, PRA did not acknowledge the
wrongful nature of its conduct. Instead, PRA assured the court
it would stop calling Meyer without making any assurance
regarding other members of the provisional class. We agree
with Meyer that PRA’s violation of the TCPA violated his
right to privacy, an interest the TCPA intended to protect. Sat-
terfield, 569 F.3d at 954. Accordingly, Meyer demonstrated
12264 MEYER v. PORTFOLIO RECOVERY
that irreparable harm is likely in the absence of injunctive
relief. Winter, 555 U.S. at 22.
[11] Finally, PRA briefly raises an as-applied due process
challenge to the TCPA. Questions of law, including due pro-
cess claims, are reviewed de novo. Vargas-Hernandez v. Gon-
zales, 497 F.3d 919, 921 (9th Cir. 2007). The basis for PRA’s
due process claim is not entirely clear, so we analyze it as a
substantive and procedural due process challenge. First, to the
extent PRA raises a substantive due process challenge, the
property interest PRA identified is its interest in conducting
a debt collection business — an economic interest. We have
held that “[w]here a fundamental right is not implicated . . .
governmental action need only have a rational basis to be
upheld against a substantive due process attack. If a statute is
not arbitrary, but implements a rational means of achieving a
legitimate governmental end, it satisfies due process.” Kim v.
United States, 121 F.3d 1269, 1273 (9th Cir. 1997) (citation
and internal quotations omitted). Here, Congress had several
goals when it passed the TCPA, including prohibiting the use
of automatic telephone dialing systems to communicate with
others by telephone in a manner that invades privacy. See Sat-
terfield, 569 F.3d at 954. Prohibiting the use of automatic
dialers to call cellular telephones without express prior con-
sent is a rational means of achieving this objective. To the
extent PRA raises a procedural due process challenge, its
argument fails because PRA has not shown that it was denied
notice or an opportunity to be heard.
AFFIRMED.