Powers v. Receivables Performance Management, LLC ( 2023 )

United States Court of Appeals
For the First Circuit
No. 22-1500
STEPHANIE POWERS, on behalf of herself
and all others similarly situated,
Plaintiff, Appellee,
v.
RECEIVABLES PERFORMANCE MANAGEMENT, LLC,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch and Gelpí, Circuit Judges.
Thomas C. Blatchley, with whom Benjamin O'Grady and Gordon
Rees Scully Mansukhani LLP were on brief, for appellant.
Stephen Taylor, with whom Sergei Lemberg and Lemberg Law LLC
were on brief, for appellee.
June 8, 2023
LYNCH, Circuit Judge. In this putative class action,
removed from Massachusetts state court to the federal district
court, plaintiff Stephanie Powers alleges that Receivables
Performance Management, LLC ("RPM"), a debt collector, contacted
her and other Massachusetts debtors more than twice within a seven-
day period in violation of section 2 of the Massachusetts Consumer
Protection Act, Mass. Gen. Laws ch. 93A, and section 7.04(1)(f) of
the Massachusetts Debt Collection Regulations, 940 Mass. Code
Regs. §§ 7.01-.10.
RPM moved to compel arbitration in the state court,
relying on an arbitration provision in the service contract between
Powers and Verizon Wireless, LLC ("Verizon"), the holder of the
alleged debt that RPM was attempting to collect. The state court
denied the motion, reasoning that, as a nonsignatory to that
service contract, RPM was not entitled to invoke the arbitration
provision under the contract law principles set forth in Landry v.
Transworld Systems Inc., 149 N.E.3d 781 (Mass. 2020). RPM could
have taken a timely interlocutory appeal from the denial in state
court but did not do so.
There matters stood at the time RPM removed the case to
federal court. In federal court, RPM did not move to dissolve or
modify the state court order denying arbitration. See 28 U.S.C.
§ 1450. Instead, RPM filed another motion to compel arbitration,
making the same arguments that had been rejected by the state
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court. Powers opposed. The district court treated this as a
motion for reconsideration of the state court order denying
arbitration and denied the motion. Powers v. Receivables
Performance Mgmt., LLC, No. 21-cv-12125, 2022 WL 1666984, at *1-2
(D. Mass. May 25, 2022). RPM appealed.
We dismiss the appeal for the reasons that follow.
I.
A.
Because we do not address the merits of this dispute, we
recount the facts only briefly. On or about December 15, 2016,
Powers opened an account with Verizon for landline telephone
service. She allegedly accrued an unpaid balance of several
hundred dollars. On or about August 16, 2018, Verizon referred
Powers' account to RPM for third-party debt collection. Powers
alleges that RPM began calling her in September 2018 to collect
the debt and called her more than twice within a seven-day period.
Verizon is not a party to this case.
In opening her Verizon account, Powers assented to the
Verizon Fios Digital Voice Terms of Service (the "Contract").1 The
1 In a few places in its opening brief, RPM also cites to
the "Verizon Online Terms of Service." Powers responds that RPM
has never explained what Verizon Online is or established that
Powers assented to these terms. Powers further argues that the
Verizon Online terms apply only to internet service and
specifically exclude landline telephone service, the service at
issue in Powers' case. RPM offers no rebuttal. We therefore treat
the Digital Voice Terms of Service as the operative contract. In
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Contract contains an arbitration provision.2 The parties dispute
whether RPM is entitled to invoke this arbitration provision.
B.
The procedural history of this case determines the
outcome of the present appeal. On September 21, 2018, Powers filed
a one-count complaint in the Massachusetts Superior Court alleging
that RPM violated section 2 of the Massachusetts Consumer
Protection Act, Mass. Gen. Laws ch. 93A, and section 7.04(1)(f) of
the Massachusetts Debt Collection Regulations, 940 Mass. Code
Regs. §§ 7.01-.10, by calling her more than twice within a seven-
day period to attempt to collect the Verizon debt. Powers also
sought to certify a class of other Massachusetts residents RPM had
called more than twice within a seven-day period regarding a debt.
There was a prior removal to federal court and remand to
state court, but that is not the removal that concerns us.3
any event, RPM states that the Verizon Online terms "largely
mirror" those in the Digital Voice Terms of Service.
2 The arbitration provision applies to "any dispute that
in any way relates to or arises out of this agreement or from any
equipment, products and services you receive from us (or from any
advertising for any such products or services)." (Capitalization
omitted.) It states that it is between the customer and Verizon:
"You and Verizon both agree to resolve disputes only by
arbitration . . . ." (Capitalization omitted.) RPM contends that
various other provisions in the Contract bear on the interpretation
of this provision.
3 RPM first removed the case to federal district court on
October 16, 2018. On October 24, Powers moved to remand for lack
of subject matter jurisdiction, alleging that RPM had failed to
establish that the $75,000 amount-in-controversy threshold for
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On July 30, 2019, RPM moved the state trial court to
compel arbitration based on the Contract's arbitration provision.4
On November 14, the court initially granted RPM's motion to compel
arbitration. On November 27, Powers moved for reconsideration or,
alternatively, requested that the court hold the motion in abeyance
until the Massachusetts Supreme Judicial Court ("SJC") issued its
opinion in Landry. On January 2, 2020, the court stayed further
proceedings pending a decision in Landry.
The SJC decided Landry on July 28, 2020. See 149 N.E.3d
at 781. On July 30, Powers renewed her motion for reconsideration,
arguing that Landry required denial of RPM's motion to compel
arbitration. The state court agreed. In an order entered January
19, 2021,5 it reasoned that, under Landry, RPM was unable to enforce
the Contract's arbitration provision as Verizon's agent, under a
third-party beneficiary theory, or as an assignee. Powers v.
Receivables Performance Mgmt., LLC, No. 18-01463, slip op. at 3-4
diversity jurisdiction was satisfied. The district court agreed
and remanded the case on April 18, 2019.
4 Several of the state court filings contain a discrepancy
between the date listed on the filing and on the certificate of
service, on the one hand, and the date the filing was stamped as
"filed" by the clerk's office, on the other (in some cases weeks
or months later). The parties do not contend that any of these
date discrepancies are material. For consistency, we use the dates
from the certificates of service.
5 The order was dated January 14 but was not entered until
January 19.
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(Mass. Super. Ct. Jan. 19, 2021). The court granted Powers' motion
for reconsideration and denied RPM's motion to compel arbitration.
Id. at 4. RPM then could have filed an interlocutory appeal in
the state courts within thirty days. It chose not to do so.
Instead, six weeks later, on March 5, 2021, RPM filed a
motion in the state court for reconsideration of the state court's
January 19 order, arguing that Landry was inapplicable. The court
denied this motion on May 26 after hearing argument, but the
parties did not receive notice of this decision until October 18,
2021.
On November 17, 2021, RPM petitioned the Massachusetts
Appeals Court for single-justice review of the trial court's
denials of its motion for reconsideration and motion to compel
arbitration. The Appeals Court dismissed the petition as untimely.
Powers v. Receivables Performance Mgmt., LLC, No. 2021-J-0544
(Mass. App. Ct. Nov. 24, 2021). The court reasoned that the time
for filing an appeal from the January 19 order denying the motion
to compel arbitration expired thirty days after entry of the order,
and that RPM's motion for reconsideration did not restart this
petitioning period because the motion was not based on a change in
circumstances. Id.
RPM states that in December 2021, while compiling
documents responsive to Powers' discovery requests, it determined
that the case was eligible for removal under the Class Action
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Fairness Act of 2005 ("CAFA"), 28 U.S.C. §§ 1332(d), 1453, 1711–
15, because the amount in controversy in the putative class action
exceeds $5,000,000. On December 23, RPM again removed the case to
federal district court.6
On February 1, 2022, RPM moved the federal district court
to compel arbitration. RPM's motion was styled as a "motion to
compel arbitration," not as a motion to reconsider the state
court's prior denial of RPM's motion to compel arbitration. The
motion essentially repeated the same arguments made to the state
court. Powers opposed the motion, arguing (in relevant part) that
it should be treated as a motion for reconsideration and denied on
the basis that the controlling legal authority had not changed,
there was no new evidence, and there was no manifest error of law
in the state court's order. She also moved to remand the case
back to state court, arguing that RPM had not satisfied CAFA's
jurisdictional requirements.
The district court heard argument on both motions on
May 2, 2022. On May 3, the district court granted Powers' motion
to remand and concluded that it lacked jurisdiction to decide RPM's
motion to compel arbitration. On May 5, RPM moved for
6 "[A] defendant who fails in an attempt to remove on the
initial pleadings can file a [successive] removal petition when
subsequent pleadings or events reveal a [n]ew and [d]ifferent
ground for removal." Fed. Deposit Ins. Corp. v. Santiago Plaza,
598 F.2d 634, 636 (1st Cir. 1979) (per curiam); accord Fritsch v.
Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 789 (9th Cir. 2018).
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reconsideration of the remand order, correcting a typographical
error in its removal papers that impacted the amount in
controversy.
On May 25, 2022, the district court granted RPM's motion
for reconsideration of the remand order and denied Powers' motion
to remand. Powers, 2022 WL 1666984, at *1.
The district court then considered RPM's motion to
compel arbitration. The motion was not based on any assertion of
the discovery of new evidence or any intervening changes in law.
The court reasoned that, because RPM's earlier motion to compel
arbitration was denied by the state court, it would treat RPM's
motion to compel as a motion for reconsideration of the state court
order. Id. Applying a reconsideration standard, the court
determined that there was "no manifest error of law" in the prior
order and denied RPM's motion to compel arbitration. Id. at *2.
This appeal followed.
II.
We start with basics. If RPM has any appeal rights on
these facts, they derive from federal law, not state law. Once a
case is removed to federal court, further proceedings are governed
by the Federal Rules, not by state procedural rules. See Fed. R.
Civ. P. 81(c)(1); Granny Goose Foods, Inc. v. Bhd. of Teamsters &
Auto Truck Drivers Loc. No. 70 of Alameda Cnty., 415 U.S. 423, 441
(1974).
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When a case is removed from state court to federal
district court, "[a]ll injunctions, orders, and other proceedings
had in such action prior to its removal shall remain in full force
and effect until dissolved or modified by the district court." 28
U.S.C. § 1450. These prior state court orders are not appealable
federal orders absent some action by the district court. See
Concordia Partners, LLC v. Pick, 790 F.3d 277, 279-80 (1st Cir.
2015). Rather, § 1450 serves "merely to preserve the status quo
in the removed case." Id. at 279; see also Granny Goose, 415 U.S.
at 436.
RPM has not challenged the district court's decision to
treat its motion to compel arbitration as a motion for
reconsideration of the state court's denial of its motion to compel
arbitration, and has instead conceded that "[f]ederal courts
reviewing pre-removal state court orders do so in the context of
a motion of reconsideration." We therefore accept for the purposes
of this case that the district court order before us is a denial
of a motion for reconsideration.7
7 RPM has also developed no argument that the district
court should not have deferred to the specific state court order
at issue here on the basis that a state court applies different
substantive law when resolving a motion to compel arbitration.
See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 530–31 (9th
Cir. 2000) (holding in removed case that reconsideration of state
court's denial of summary judgment was proper because "California
and federal summary judgment standards are different"). We
therefore have no reason in this case to question the conclusion
reached by other courts that "[a] state court reviewing a motion
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Viewed in that light, the order is not a final decision
and not within an exception that would permit interlocutory review.
"[A]t least absent some newly available evidence, law, or a new
stage of the proceedings, orders denying [untimely] motions for
reconsideration of . . . appealable interlocutory order[s] are
generally not themselves appealable." Marie v. Allied Home Mortg.
Corp., 402 F.3d 1, 8 n.4 (1st Cir. 2005); see also Anderson v.
City of New Orleans, 38 F.4th 472, 478 (5th Cir. 2022) (concluding
that the court could review the denial of a Rule 60(b) motion for
relief from a district court's order to the extent the motion was
premised on factual or legal changes, but "lack[ed] jurisdiction
to review the substance of the [underlying] orders").
Here, RPM's motion was not based on "newly available
evidence[] [or] law," and the case remains at the same "stage of
the proceedings" -- a motion to compel arbitration. Marie, 402
F.3d at 8 n.4 (citing Behrens v. Pelletier, 516 U.S. 299, 306–07
(1996)). And, while reconsideration can be warranted not only for
"newly available evidence[] [or] law," but also for a "manifest
error of law," and while RPM does argue that the state court's
denial of its motion to compel arbitration "contained a manifest
error of law," it develops no argument that merely asserting a
to compel arbitration governed by the Federal Arbitration Act . . .
applies the same body of law and precedent that a federal court
would." Roberts v. Harley Davidson Fin. Servs., Inc., 611 F. Supp.
3d 761, 766 (W.D. Mo. 2020).
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"manifest error of law" can provide a basis for appellate
jurisdiction in the way that asserting "newly available evidence[]
[or] law" can. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990); see also Cozza v. Network Assocs., Inc., 362 F.3d 12,
15–16 (1st Cir. 2004) ("[A party] cannot seriously argue any
entitlement to bring successive interlocutory appeals based upon
the same arguments [already rejected], nor to appeal arguments
which it could have appealed earlier, but did not.").
We do not reach the merits question of whether Landry
was correctly applied. We also express no view on any of the
jurisdictional or merits questions that might arise in any appeal
from final judgment.
III.
For the foregoing reasons, the appeal is dismissed.
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