Randall v. Maxwell & Morgan PC et al, No. 2:2017cv01474 - Document 59 (D. Ariz. 2018)
Court Description: ORDER granting 45 Motion for Judgment on the Pleadings. The Clerk shall enter judgment accordingly. Plaintiffs 46 Motion for Summary Judgment and Defendants' 56 Motion to Strike are denied. Signed by Senior Judge James A Teilborg on 7/25/18. (DXD)
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Randall v. Maxwell & Morgan PC et al 1 Doc. 59 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Shannon K. Randall, Plaintiff, 10 11 ORDER v. 12 No. CV-17-01474-PHX-JAT Maxwell & Morgan, P.C., an Arizona professional corporation, Rebecca Easton and Ryan Daniel Easton, 13 14 Defendants. 15 16 Pending before the Court are Defendants Maxwell & Morgan, P.C., Rebecca 17 Easton, and Ryan Daniel Easton’s (“Defendants”) Motion for Judgment on the Pleadings, 18 (Doc. 45), Plaintiff Shannon K. Randall’s (“Plaintiff”) Motion for Summary Judgment, 19 (Doc. 46), and Defendants’ Motion to Strike Portions of the Plaintiff’s Reply in Support 20 of the Motion for Summary Judgment, (Doc. 56). 21 I. Background 22 Plaintiff is a resident of Pinal County and is employed by the Casa Grande 23 Elementary School District. (Doc. 46 at 2.) Plaintiff owned her primary residence, which 24 was located in Pinal County, until it was foreclosed upon in 2010. (Id.) As the owner of 25 her primary residence, Plaintiff was obligated to pay homeowners’ assessments to her 26 homeowners’ association (the “Association”). (Id.) After Plaintiff failed to pay her 27 homeowners’ assessments, an action was filed against her by the Association in the Casa 28 Grande Justice Court of Pinal County. (Doc. 45 at 3–4.) The Association was granted Dockets.Justia.com 1 summary judgment in that action against Plaintiff. (Id. at 4.) The judgment awarded, 2 among other things, the unpaid homeowners’ assessments and “all reasonable costs and 3 attorneys’ fees incurred by [the Association] after entry of this judgment in collecting the 4 amounts awarded therein.” (Id.) 5 On January 31, 2017, Defendants commenced a garnishment action on behalf of 6 the Association (the “Garnishment Action”) by filing an Application for Garnishment in 7 the Maricopa County Superior Court against Plaintiff’s employer, the Casa Grande 8 Elementary School District. (Doc. 46 at 2.) The Garnishment Action sought payment of 9 the amount adjudged due, “including attorney fees and costs as may be awarded by [the] 10 Court.” (Doc. 45 at 4.) Defendants also filed an Application for Amount of Attorney 11 Fees, a China Doll Affidavit in support of the Fee Application, and a statement of costs in 12 the Garnishment Action to seek court approval of the fees and costs identified in the 13 Application for Garnishment. (Id.) 14 On February 8, 2017, the Maricopa County Superior Court issued a Writ of 15 Garnishment to Plaintiff’s employer. (Id.) Plaintiff’s employer submitted an Answer of 16 Garnishee, and on February 21, 2017, the Maricopa County Superior Court approved the 17 application for fees and statement of costs. (Id.) 18 On March 9, 2017, Plaintiff objected to and moved to quash the Writ of 19 Garnishment and vacate the order approving the application for attorneys’ fees and 20 statement of costs on the grounds that they were filed in an improper venue. (Id. at 5.) 21 The Maricopa County Superior Court denied the objection and both motions. (Id.) 22 On November 22, 2017, Plaintiff filed the First Amended Complaint, (Doc. 37). 23 (Id.) In it, Plaintiff alleges that, by commencing a garnishment action and requesting 24 post-judgment fees and costs in Maricopa County, Defendants violated § 1692i of the 25 Fair Debt Collection Practices Act (“FDCPA”). (Id.) Plaintiff alleges that under § 1692i, 26 Defendants were required to file the garnishment action and supporting papers in Pinal 27 County. (Id.) 28 On March 12, 2018, Defendants filed the pending Motion for Judgment on the -2- 1 Pleadings requesting that this Court grant judgment in favor of Defendants on all claims. 2 (Id. at 11.) Plaintiff filed a brief in opposition to the Motion for Judgment on the 3 Pleadings, (Doc. 51), as well as a Motion for Summary Judgment. Defendants filed a 4 brief in opposition to the Motion for Summary Judgment, (Doc. 52), as well as a Motion 5 to Strike Portions of Plaintiff’s Reply in Support of the Motion for Summary Judgment. 6 II. Motion for Judgment on the Pleadings 7 A. 8 A motion for judgment on the pleadings under Federal Rule of Civil Procedure 9 (“Rule”) 12(c) is “functionally identical” to a Rule 12(b)(6) motion to dismiss. Cafasso, 10 U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011). 11 Therefore, “the same standard of review applies to motions brought under either rule,” 12 id., and “[a] judgment on the pleadings is properly granted when, taking all the 13 allegations in the pleadings as true, the moving party is entitled to judgment as a matter 14 of law,” Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th Cir. 1998) (citing McGann v. 15 Ernst & Young, 102 F.3d 390, 392 (9th Cir. 1996)). Legal Standard 16 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must 17 meet the requirements of Rule 8. Rule 8 requires that a pleading contain “a short and 18 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 19 8(a)(2). To meet this standard, “a complaint must contain sufficient factual matter, 20 accepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 21 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 22 (2007)). To have facial plausibility, a complaint must include “factual content that allows 23 the court to draw the reasonable inference that the defendant is liable for the misconduct 24 alleged.” Id. This analysis is “context-specific” and is driven by “judicial experience and 25 common sense.” Id. at 679. 26 In deciding a motion to dismiss, the Court must construe the facts alleged in the 27 complaint “in the light most favorable” to the plaintiff. Schlegel v. Wells Fargo Bank, 28 720 F.3d 1204, 1207 (9th Cir. 2013) (quoting Autotel v. Nev. Bell Tel. Co., 697 F.3d 846, -3- 1 850 (9th Cir. 2012)); see also Cafasso, 637 F.3d at 1053 (“When considering a Rule 2 12(c) dismissal, we must accept the facts as pled by the nonmovant”). This same 3 presumption, however, is not extended to legal conclusions: “Threadbare recitals of the 4 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 5 Ashcroft, 556 U.S. at 678. Rule 8 “requires a ‘showing,’ rather than a blanket assertion, 6 of entitlement to relief.” Twombley, 550 U.S. at 555 (citing 5 Charles A. Wright & Arthur 7 R. Miller, Federal Practice & Procedure § 1202 (3d ed. 2004)). 8 B. 9 The FDCPA requires that: 10 Any debt collector who brings any legal action on a debt against any consumer shall . . . bring such action only in the judicial district or similar legal entity—(A) in which such consumer signed the contract sued upon; or (B) in which such consumer resides at the commencement of the action. 11 12 13 14 Discussion 15 U.S.C. § 1692i. 1 15 Plaintiff alleges that Defendants violated § 1692i by bringing the Garnishment 16 Action in Maricopa County, where Plaintiff neither signed a contract sued upon nor 17 resided at the commencement of the action. (Doc. 37 at 3–4.) Plaintiff also alleges that 18 Defendants violated § 1692i by seeking post-judgment fees and costs in Maricopa 19 County. (Id. at 4.) 20 Defendants argue that the Garnishment Action and request for post-judgment fees 21 and costs are actions “against” Plaintiff’s employer, and not Plaintiff herself, so § 1692i 22 does not apply to the Garnishment Action or the request for post-judgment fees and costs. 23 (Doc. 45 at 6–11.) 1. 24 The Garnishment Action 25 The Court must first address whether the Garnishment Action was “against” 26 Plaintiff as the judgment-debtor or “against” Plaintiff’s employer as the garnishee. While 27 28 1 15 U.S.C. § 1692a(5) defines debt to include obligations that have been “reduced to judgment.” -4- 1 the Ninth Circuit has not answered this specific question, it has considered if a 2 garnishment action may be subject to § 1692i. See Fox v. Citicorp Credit Servs. Inc., 15 3 F.3d 1507, 1511 (9th Cir. 1994). 4 a. Applicability of Fox 5 In Fox, the Ninth Circuit addressed the meaning of the term “legal action” within 6 § 1692i. Id. It ultimately held that “[t]he plain meaning of the term ‘legal action’ 7 encompasses all judicial proceedings, including those in enforcement of a previously- 8 adjudicated right.” Id. at 1515 (citation omitted). As a garnishment action is an 9 enforcement action, the Ninth Circuit found that a garnishment action is a legal action 10 under § 1692i. Id. 11 Yet, in Fox the Ninth Circuit did not answer the question of who a garnishment 12 action is “against.” See id. Plaintiff argues that “Fox, however, expressly considered the 13 adversarial nature of a garnishment proceeding against the judgment-debtor and 14 consumer,” (Doc. 51 at 4), when discussing the burdens consumers face when “having to 15 defend against suits in ‘distant or inconvenient’ courts,” Fox, 15 F.3d at 1515 (citing S. 16 Rep No. 95-382, at 5 (1977)). While Fox did discuss the burdens consumers face when 17 having to defend against a legal action in an inconvenient court, Fox discussed these 18 burdens in the context of determining what a “legal action” was. Id. At no point did the 19 discussion in Fox turn to whom a garnishment action is “against.” See id. 20 Fox, in addition, is distinguishable from the case at bar. In Fox, the judgment- 21 debtor did not have an opportunity to defend against the underlying action on their debt 22 in a convenient venue because the debt collector had not filed the underlying action in the 23 proper venue. Id. at 1510. Thus, in Fox, if the garnishment action had been allowed to 24 proceed in an inconvenient venue, the judgment-debtor would have never had an 25 opportunity to try their case in the proper venue. Here, it is undisputed that Plaintiff had 26 the opportunity to try her underlying case in the proper venue of Pinal County. (See Doc. 27 51 at 2.) Therefore, Plaintiff was not “denied [her] day in court,” and the same concerns 28 held by the court in Fox do not apply to the case at bar. S. Rep. No. 95-382, at 5 (1977). -5- 1 b. Other Circuits and the Federal Trade Commission 2 Although the Ninth Circuit has not addressed the question presented in this case, 3 other circuits have answered whether a garnishment action is “against” a judgment-debtor 4 under § 1692i. Those circuits looked to the nature of the state’s garnishment scheme and 5 held that a garnishment action is not an action “against” a debtor under § 1692i, but is an 6 action against the garnishee. See, e.g., Hageman v. Barton, 817 F.3d 611, 617–18 (8th 7 Cir. 2016) (holding an Illinois garnishment action is not “against” a judgment-debtor but 8 instead is against the garnishee); Jackson v. Blitt & Gaines, P.C., 833 F.3d 860, 864 (7th 9 Cir. 2016) (same as above); Ray v. McCullough Payne & Haan, LLC, 838 F.3d 1107, 10 1111 (11th Cir. 2016) (holding a Georgia garnishment action is not “against” a judgment- 11 debtor but instead is against the garnishee); Smith v. Solomon & Solomon, P.C., 714 F.3d 12 73, 74–76 (1st Cir. 2013) (holding a Massachusetts garnishment action is not “against” a 13 judgment-debtor but instead is against the garnishee). 14 In determining who a garnishment action is against, circuit courts have looked to 15 the nature of the underlying state garnishment scheme for guidance. Jackson, 833 F.3d at 16 864. In Jackson, the Seventh Circuit held that a garnishment action is against the 17 garnishee, in part, because: (1) Illinois law requires the garnishment summons be issued 18 to and served upon the garnishee; (2) the judgment-debtor is only entitled to notice of the 19 garnishment proceedings; (3) only the garnishee is required to respond to the garnishment 20 proceedings; and (4) the garnishee may be found liable if it does not comply with the 21 garnishment process. Id. Under Arizona’s Garnishment scheme: (1) the garnishment 22 summons is issued to and served upon the garnishee; (2) the judgment-debtor is only 23 entitled to notice of the garnishment proceedings; (3) only the garnishee is required to 24 respond to the garnishment proceedings; and (4) the garnishee may be found liable if it 25 does not comply with the garnishment process. A.R.S. §§ 12-1598.04, 12-1598.08, 12- 26 1598.13. Just like in Jackson, “[t]hese characteristics of an [Arizona] wage-garnishment 27 action make clear to [the Court] that it is a legal proceeding against an employer, not a 28 consumer.” Jackson, 833 F.3d at 864 (emphasis in original). -6- 1 Other circuits have also considered the concerns addressed in Fox regarding the 2 burdens consumers would face by “having to defend against suits in ‘distant or 3 inconvenient’ courts.” Fox, 15 F.3d at 1515 (citation omitted). In some cases, the circuit 4 courts found that these burdens did not apply to garnishment actions because the 5 judgment-debtors were neither required to defend themselves in a garnishment 6 proceeding nor even compelled to appear. See, e.g., Hageman, 817 F.3d at 618 (finding 7 that the duties of a garnishment action are imposed upon the garnishee, not the judgment- 8 debtor); Smith, 714 F.3d at 75–76 (finding that the judgment-debtor is not compelled to 9 defend themselves in a garnishment action); Jackson, 833 F.3d at 864 (finding that the 10 garnishment action does not compel action from the judgment-debtor). In other cases, the 11 circuit courts found that the judgment-debtors had already received an opportunity to 12 defend themselves in a convenient forum in the original debt proceeding. See, e.g., Ray, 13 838 F.3d at 1112 (finding that a judgment-debtor did not lose her opportunity to defend 14 herself in a convenient forum when subject to a garnishment action in an inconvenient 15 forum because “[t]he original suit to collect on the debt occurred in a forum that was 16 convenient for [her]”). Here, Plaintiff is neither required to defend herself in the present 17 garnishment proceeding nor compelled to appear, and Plaintiff already received an 18 opportunity to defend herself in a convenient forum through the original debt proceeding. 19 See A.R.S. §§ 12-1598.04, 12-1598.08, 12-1598.13; (Doc. 51 at 2.) Thus, the concerns 20 addressed in Fox regarding the burdens of defending against suits in “distant or 21 inconvenient courts” are not applicable here. Fox, 15 F.3d at 1515 (citation omitted). 22 The Federal Trade Commission’s (“FTC”) interpretation of § 1692i supports the 23 contention that once a debtor has an opportunity to defend against a debt action in a 24 convenient forum, a garnishment action for that debt may be initiated in another forum. 25 See Statements of General Policy or Interpretation Staff Commentary On the Fair Debt 26 Collection Practices Act, 53 Fed. Reg. 50097-02, 50109 (Dec. 13, 1988) (“If a judgment 27 is obtained in a forum that satisfies the requirements of [§ 1692i], it may be enforced in 28 another jurisdiction, because the consumer previously has had the opportunity to defend -7- 1 the original action in a convenient forum”). While the FTC interpretation is not binding 2 on the Court, it is persuasive. Romine v. Diversified Collection Servs., Inc., 155 F.3d 3 1142, 1147 (9th Cir. 1998); see also Peak v. Prof’l Credit Serv., No. 6:14-CV-01856-AA, 4 2015 WL 7862774, at *5 (D. Or. Dec. 2, 2015) (“FTC interpretations of the FDCPA are 5 entitled to ‘considerable weight’” (citation omitted)). Here, because Plaintiff had the 6 opportunity to defend herself in a forum that satisfied § 1692i, the concerns expressed by 7 the Ninth Circuit in Fox are assuaged and the FTC’s rationale for allowing a garnishment 8 action in a different forum is applicable. 9 c. Other District Courts within the Ninth Circuit 10 Though the Ninth Circuit has not directly addressed who a garnishment action is 11 against, district courts within the Ninth Circuit have answered this question. In 12 Muhammad v. Reese Law Group, on a motion for summary judgment, the court found 13 that § 1692i did not apply to a garnishment action because a garnishment action is 14 “against” the garnishee rather than the judgment-debtor. No. 16CV2513-MMA (BGS), 15 2017 WL 4557194, at *7 (S.D. Cal. Oct. 12, 2017). In reaching its conclusion, the court 16 in Muhammad followed a two-step process. Id. at *6–7. First, the court determined if the 17 underlying judgment was obtained in the proper venue. Id. at *7. If the underlying 18 judgment was not obtained in the proper venue, then the plaintiff could proceed on their 19 FDCPA claim. Id. at *6. On the other hand, if the underlying judgment was obtained in 20 the proper venue, as was the case in Muhammad, then the court could move on to the 21 second step. Id. at *6–7. Second, the court examined state law to determine “whether an 22 enforcement action is against a consumer or third party under the FDCPA’s venue 23 provision.” Id. at *6. Similar to the courts in Hagemen, Jackson, Ray, and Smith, the 24 court in Muhammad found that California’s garnishment scheme “is fundamentally an 25 action against the employer—not the consumer.” Id. at *7. Because California’s 26 garnishment scheme is an action against the employer, the court determined that § 1692i 27 did not apply to garnishment actions as long as the underlying judgment was obtained in 28 compliance with § 1692i. Id. -8- 1 Cole v. Cardez Credit Affiliates, LLC also discussed the two-step process in 2 determining if a garnishment action was “against” the judgment-debtor or the garnishee. 3 No. 1:14-CV-00077-REB, 2015 WL 1281651, at *7 (D. Idaho Mar. 19, 2015). In Cole, 4 on a motion to dismiss for failure to state a claim and a motion for judgement on the 5 pleadings, the court found that the first step of the two-step process was not satisfied 6 because the underlying judgment was obtained in “a distant and inconvenient court, in a 7 venue not proper under the FDCPA.” Id. at *8. While the court in Cole did not engage in 8 both steps of the two-step process, it did acknowledge that the two-step process “makes 9 sense, notwithstanding Fox’s lack of clarity on the issue.” Id. at *7. The court in Cole 10 went on to say that if the underlying judgment was obtained in the proper venue under 11 § 1692i that the two-step process “would more neatly apply and an examination of Idaho 12 state law might be warranted.” Id. at *8. 13 Here, applying the two-step process used by other districts in the Ninth Circuit, it 14 is clear that § 1692i does not apply to the garnishment action at issue. First, Plaintiff does 15 not contest the fact that the underlying judgment was obtained in the proper venue in 16 compliance with § 1692i. (See Doc. 47 at 2.) Second, similar to the examination 17 performed in Muhammad and the other circuit courts, an examination of Arizona’s 18 garnishment scheme shows that a garnishment action is against the garnishee, not the 19 judgment debtor. See supra Part II.B.1.b. Thus, Plaintiff’s claim that Defendants violated 20 § 1692i by bringing the Garnishment Action on behalf of the Association in Maricopa 21 County fails as a matter of law, and Defendants’ Motion for Judgment on the Pleadings 22 regarding the garnishment action is granted. 23 2. Post-Judgment Fees and Costs 24 Plaintiff also alleges that Defendants violated § 1692i by bringing a separate 25 action on Plaintiff’s debt when seeking court approval of post-judgment fees and costs in 26 Maricopa County. (Doc. 37 at 4.) Defendant argues that the request for court approval of 27 post-judgment fees and costs does not violate § 1692i because it is merely a procedural 28 step in the Garnishment Action. (Doc. 45 at 9.) Defendant reasons that, because § 1692i -9- 1 does not apply to the Garnishment Action, § 1692i should not apply to the request for 2 post-judgment fees and costs that is simply a procedural step in the Garnishment Action. 3 (Id.) Therefore, the Court must determine if Defendants’ request for fees and costs was a 4 separate action on a debt, or just a step in the underlying garnishment action. 5 The Supreme Court has made clear that garnishment actions are not wholly new 6 actions, but are simply “supplemental proceedings” to satisfy the underlying judgments. 7 Endicott-Johnson Corp. v. Encyclopedia Press, 266 U.S. 285, 288 (1924). In fact, the 8 Supreme Court held that judgment-debtors subject to garnishment proceedings are not 9 even entitled to due process because they received due process in the underlying action. 10 Id. 11 The District of Arizona is in line with Endicott-Johnson holding that no due 12 process is owed to a judgment-debtor in a garnishment proceeding because a garnishment 13 proceeding is not a new action against a judgment-debtor. Neeley v. Century Fin. Co. of 14 Ariz., 606 F. Supp. 1453, 1461 (D. Ariz. 1985). Courts have gone so far as to hold that, 15 absent a specific statute, the judgment-debtor’s interest in a garnishment proceeding is 16 “almost non-existent.” Id. While the FDCPA may grant additional due process rights to 17 individuals subject to garnishment actions, courts hold that seeking fees and costs in a 18 garnishment action does not violate the FDCPA as long as a court approves of the 19 specific amount sought. Kinna v. Maxwell & Morgan PC, No. CV-16-00909-PHX-JZB, 20 2017 WL 5992336, at *8–10 (D. Ariz. Dec. 1, 2017). Additionally, these applications for 21 fees and costs do not need to be served “as a new complaint and summons,” because they 22 do not constitute a new action against the judgment-debtor. Id. at *11. 23 If Defendants had made a new demand on Plaintiff, § 1692i might apply. For 24 example, in Costa v. Maxwell & Morgan PC, a debt collector sent a bill for post- 25 judgment fees and costs directly to the judgment-debtor with no approval or oversight 26 from the court. No. CV-15-00315-PHX-NVW, 2015 WL 3490115, at *1 (D. Ariz. June 3, 27 2015). There, the court found that the debt collector had violated the FDCPA “by 28 demanding attorneys’ fees not approved by a court.” Id. at *6. Here, however, Defendants - 10 - 1 submitted their request for post-judgment fees and costs to the court for approval. (Doc. 2 45 at 4.) Because Defendants submitted their request for fees and costs to the court, they 3 did not demand attorneys’ fees not approved by the court, and thus did not run afoul of 4 Costa. Costa, 2015 WL 3490115, at *1. 5 In her Reply in Support of Plaintiff’s Motion for Summary Judgment, (Doc. 55), 6 Plaintiff argues that A.R.S. § 12-1580(E) is the “exclusive fee recovery remedy in 7 garnishment proceedings and no contractual language [can] waiver it.” (Doc. 55 at 5 8 (citing Bennett Blum, M.D., Inc. v. Cowan, 330 P.3d 961, 965–66 (Ariz. Ct. App. 2014).) 9 However, A.R.S. § 12-1580(E) only applies to fees arising from “an objection to the writ 10 of garnishment.” A.R.S. § 12-1580(A). Here, the fees and cost sought were incurred pre- 11 garnishment, so A.R.S. § 12-1580(E) does not limit Defendants’ ability to collect. 12 A request for post-judgment fees and costs is not a new action against a debtor 13 because a request for post-judgment fees and costs is “a request to a third party—the 14 court—for consideration, not a demand to the debtor himself.” Zizlsperger v. Maxwell & 15 Morgan, PC, No. CV 11-01376-PHX-FJM, 2011 WL 5027034, at *2 (D. Ariz. Oct. 21, 16 2011), aff’d, 565 F. App'x 633 (9th Cir. 2014) (citation omitted). Here, the request for 17 post-judgment fees and costs was not a new “demand to the debtor.” Id. Instead, the 18 request was simply seeking approval from the court for a specific amount of fees to 19 satisfy a judgment already rendered. (Doc. 37-1 at 6–17.) Because the request for a 20 specific amount of fees and costs was not a new demand on the debtor, the request for 21 post-judgment fees and costs is not in violation of § 1692i. Thus, Plaintiff’s claim that 22 Defendants’ request for approval of post-judgment fees and costs violated § 1692i fails as 23 a matter of law, and Defendants’ Motion for Judgment on the Pleadings regarding post- 24 judgement costs and fees is granted. 25 III. Motion for Summary Judgment and Motion to Strike 26 Plaintiff filed a Motion for Summary Judgment in which she alleges that 27 Defendants’ garnishment action and request for post-judgment fees and costs are in 28 violation of § 1692i. (Doc. 46 at 3–6.) As discussed above, these arguments fail as a - 11 - 1 matter of law. See supra Part II.B.1–2. 2 2 Plaintiff additionally argues that Defendants are debt collectors and thus subject to 3 the FDCPA. (Doc. 46 at 6.) Because Plaintiff’s FDCPA claims fail as a matter of law, the 4 Court will not address whether Defendants are debt collectors. 5 Defendants filed a Motion to Strike Portions of the Plaintiff’s Reply in Support of 6 Motion for Summary Judgment. Because the arguments in Plaintiff’s Motion for 7 Summary Judgment either fail as a matter of law or are immaterial to the Court’s 8 analysis, the Court will deny Defendants’ Motion to Strike as moot. 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 22 23 24 25 26 27 28 2 Plaintiff also asserts, albeit passingly, that “post-judgment fees and costs are legally improper.” (Doc. 46 at 5.) Yet, in support of this claim, Plaintiff fails to cite any cases within the District of Arizona. (Id.) Courts within the District of Arizona have repeatedly held that such post-judgment fees are proper and have awarded them. See, e.g., Kinna, 2017 WL 5992336, at *9 (granting summary judgment and holding that an award of post-judgment fees and costs was proper); Torrie v. Goodman Law Offices PC, No. CV-13-02659-PHX-DGC, 2014 WL 5594452, at *5 (D. Ariz. Nov. 4, 2014) (granting summary judgment and holding that an award of post-judgment fees and costs was proper); Bennett Blum, 330 P.3d at 962–63 (holding that, in Arizona, an award of postjudgment fees and costs is proper). Therefore, Defendants’ request for post-judgment fees and costs is proper in the District of Arizona. - 12 - 1 IV. Conclusion 2 For the reasons stated above, 3 IT IS ORDERED that Defendants’ Motion for Judgment on the Pleadings, (Doc. 4 5 6 7 8 9 45), is granted. The Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment, (Doc. 46), is denied. IT IS FURTHER ORDERED that Defendants’ Motion to Strike Portions of Plaintiff’s Reply in Support of Motion for Summary Judgment, (Doc. 56), is denied. Dated this 25th day of July, 2018. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 -
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