Richard Shupe v. Jpmorgan Chase Bank Na , 671 F. App'x 419 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 23 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD SHUPE; MARIA L. SHUPE, No. 14-16241
Plaintiffs-Appellants, D.C. No. 4:11-cv-00501-RCC
v.
MEMORANDUM*
JPMORGAN CHASE BANK, N.A.,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief Judge, Presiding
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Richard and Maria L. Shupe appeal pro se from the district court’s summary
judgment in their action alleging a violation of the Telephone Consumer Protection
Act of 1991 (“TCPA”) and state law claims. We review de novo. Johnson v. Bay
Area Rapid Transit Dist., 724 F.3d 1159, 1168 (9th Cir. 2013). 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).
Contrary to the Shupes’ contention, Chase’s calls to collect on a debt were
exempt under the TCPA. See 47 U.S.C. § 227(b)(1)(B) (prohibiting the use of an
artificial or prerecorded voice in a call to a residential telephone line unless
exempted by a rule or order of the Federal Communications Commission); see also
In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of
1991, Report and Order, 7 F.C.C. Rcd. 8752, 8773 ¶ 39 (Oct. 16, 1992) (debt
collection calls are “covered by exemptions . . . for commercial calls which do not
transmit an unsolicited advertisement”).
The district court did not abuse its discretion in denying the Shupes’ motion
for leave to amend their complaint because they failed to demonstrate good cause.
See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-09 (9th Cir. 1992)
(setting forth standard of review and holding that a party seeking amendment after
the deadline set forth in the scheduling order must demonstrate good cause, the
focus of which is the diligence of the moving party).
We reject as without merit the Shupes’ contention that the district court
failed to give them an opportunity to authenticate evidence they submitted in
support of their motion for summary judgment.
We do not consider documents not presented to the district court. See
United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).
2 14-16241
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments raised for the first time on appeal. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
3 14-16241