Anthony Rector v. Wells Fargo Dealer Services , 672 F. App'x 779 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY W. RECTOR, No. 14-55884
Plaintiff-Appellant, D.C. No. 2:13-cv-05288-DSF-
MAN
v.
WELLS FARGO DEALER SERVICES; MEMORANDUM*
NADINE GARCIA,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Anthony W. Rector appeals pro se from the district court’s summary
judgment in his action alleging violations of the Telephone Consumer Protection
Act (“TCPA”), the Fair Debt Collection Practices Act (“FDCPA”), and for
*
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).
invasion of privacy. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm.
The district court properly granted summary judgment on Rector’s TCPA
claim because Rector failed to raise a genuine dispute of material fact as to
whether defendants used an automatic telephone dialing system to call Rector. See
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 granted summary judgment on Rector’s FDCPA
claim because Rector failed to raise a genuine dispute of material fact as to
whether defendants were debt collectors within the meaning of the FDCPA. See
15 U.S.C. § 1692a(6)(F)(iii) (“[D]ebt collector” does not include “any person
collecting or attempting to collect any debt owed . . . to the extent such activity . . .
concerns a debt which was not in default at the time it was obtained by such
person.”); De Dios v. Int’l Realty & Invs., 641 F.3d 1071, 1074 (9th Cir. 2011)
(holding that defendant was not a “debt collector” for purposes of the FDCPA
where it acquired plaintiff’s debt before it was in default).
The district court properly granted summary judgment on Rector’s invasion
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of privacy claim because Rector failed to raise a genuine dispute of material fact as
to whether defendants’ conduct would be highly offensive to a reasonable person.
See Deteresa v. Am. Broad. Cos., 121 F.3d 460, 465 (9th Cir. 1997) (setting forth
elements under California law of a claim for invasion of privacy by intrusion upon
seclusion).
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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