Anton Ewing v. Mark Pollard ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTON A. EWING, an individual, No. 20-55155
Plaintiff-Appellant, D.C. No. 3:19-cv-00855-CAB-BGS
v.
MEMORANDUM*
MARK POLLARD, an individual,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted April 20, 2021**
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
Anton A. Ewing appeals pro se from the district court’s 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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court properly granted summary judgment on Ewing’s 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 Ewing’s 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 Pollard’s 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
2 20-55155
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 Ewing’s 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.
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