EWING v. POLLARD (2021)

United States Court of Appeals, Ninth Circuit.2021-04-29No. No. 20-55155

Summary · law.co

Holding. The court affirmed the district court's summary judgment on Ewing's TCPA claims because he failed to create a genuine dispute of material fact regarding the elements of his claim, and the court properly converted the defendant's motion to dismiss into a summary judgment motion after providing notice and opportunity to respond.

Anton Ewing filed a pro se appeal challenging the district court's grant of summary judgment against his Telephone Consumer Protection Act claims. The core issue was whether the defendant, Pollard, violated the TCPA by using an automatic dialing system, calling a residential phone line, or making repeated calls without proper consent. Ewing failed to establish genuine disputes about these material facts, and summary judgment was therefore proper.

The district court also properly converted Pollard's motion to dismiss into a summary judgment motion after Pollard introduced materials outside the complaint and disputed factual allegations. The court gave both parties notice and opportunity to supplement the record as required. Additionally, the district court did not abuse its discretion in denying Ewing's request to amend his complaint, finding that Ewing's delay, bad faith conduct, and dilatory tactics, combined with prejudice to Pollard and the futility of further amendment, justified the denial.

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Key issues

Whether defendant used an automatic telephone dialing system in violation of the TCPA
Whether summary judgment was appropriate given the absence of factual disputes
Whether conversion of motion to dismiss to summary judgment motion was procedurally proper
Whether denial of leave to amend complaint was an abuse of discretion

Procedural posture

Ewing appealed pro se from the district court's grant of summary judgment dismissing his TCPA claims, which arose from allegedly unlawful telephone calls by the defendant Pollard.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Anton A. Ewing appeals pro se from the district courts summary judgment in his action alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). We review de novo. Westport Ins. Corp. v. Cal. Cas. Mgmt. Co., 916 F.3d 769, 773 (9th Cir. 2019). We affirm.

The district court properly granted summary judgment on Ewings TCPA claims because Ewing failed to raise a genuine dispute of material fact as to whether Pollard used an automatic telephone dialing system to call Ewing, whether Pollard called Ewings residential telephone line, or whether Pollard called Ewing more than once. See 47 U.S.C. § 227(b)(1)(A)(iii) (prohibiting use of an automatic telephone dialing system or an artificial or prerecorded voice to make a call to a cellular phone without prior express consent); id. § 227(b)(1)(B) (prohibiting certain calls made to a residential telephone line); id. § 227(c) (creating a private right of action for any person who has received more than one call within any 12-month period by or on behalf of the same entity in violation of this subsection); Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (setting forth elements of a TCPA claim, including that defendant must have used “an automatic telephone dialing system”).

The district court properly converted Pollards motion to dismiss into one for summary judgment because Pollard cited materials extrinsic to the first amended complaint and disputed its factual allegations, and the district court properly provided the parties notice and an opportunity to present all material pertinent to the motion. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”); Singh v. Am. Honda Fin. Corp., 925 F.3d 1053, 1075-76 (9th Cir. 2019) (no error where district court converted a motion to dismiss into one for summary judgment after furnishing all parties an opportunity to supplement the record).

The district court did not abuse its discretion by denying Ewings motion to amend his first amended complaint because the record demonstrates evidence of undue delay, bad faith, and a dilatory motive on the part of Ewing, as well as prejudice to Pollard and the futility of amendment. See Royal Ins. Co. of Am. v. Sw. Marine, 194 F.3d 1009, 1016 (9th Cir. 1999) (setting forth standard of review and factors to consider in granting or denying leave to amend).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.