NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 24 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARLA MARIE DAVIS, No. 18-15702

Plaintiff-Appellant, D.C. No. 5:14-cv-03892-BLF

v.

MEMORANDUM*

MANDARICH LAW GROUP, a California limited liability partnership; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding

Argued and Submitted December 5, 2019 San Francisco, California

Before: W. FLETCHER and MILLER, Circuit Judges, and PREGERSON,** District Judge.

Marla Marie Davis appeals from the final judgment of the district court

confirming an arbitration award in favor of Mandarich Law Group and associated

defendants under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. § 1692 et seq. During the course of the appeal, Mandarich raised a question as to

whether Davis has Article III standing. We vacate the judgment and remand to

allow the district court to evaluate standing in the first instance.

In this putative class action, Davis alleges that Mandarich violated the

FDCPA when, in the course of debt-collection litigation brought against her in

California state court, it sent her a declaration that purported to comply with

California Code of Civil Procedure § 98 but was in fact inconsistent with that

provision. According to Davis, Mandarich’s conduct violated the FDCPA because

debt collectors “may not use any false, deceptive, or misleading representation or

means in connection with the collection of any debt,” 15 U.S.C. § 1692e, and “may

not use unfair or unconscionable means to collect or attempt to collect any debt,”

id. § 1692f; see also id. § 1692e(5) (prohibiting “threat[s] to take any action that

cannot legally be taken”); id. § 1692e(10) (prohibiting “[t]he use of any false

representation or deceptive means to collect or attempt to collect any debt”).

As the party invoking federal jurisdiction, Davis “bears the burden of

establishing the elements of Article III jurisdiction,” including standing. Patel v.

Facebook, Inc., 932 F.3d 1264, 1270 (9th Cir. 2019). To have standing under

Article III, a plaintiff must show “an ‘injury in fact’—an invasion of a legally

protected interest which is (a) concrete and particularized; and (b) actual or

imminent, not conjectural or hypothetical.” Id. (quoting Lujan v. Defenders of

2 Wildlife, 504 U.S. 555, 560 (1992)). “[F]or Article III purposes, it is not enough for

a plaintiff to allege that a defendant has violated a right created by a statute; we

must still ascertain whether the plaintiff suffered a concrete injury-in-fact due to

the violation.” Id.; see Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016).

There is a serious question whether Davis has adequately alleged an injury

in fact—or whether she could do so if given leave to amend her complaint.

Mandarich, however, did not raise the issue until its brief on appeal, offering just

over two pages on the question. Because standing affects our subject-matter

jurisdiction, it is not subject to waiver or forfeiture. See Renee v. Duncan, 686 F.3d

1002, 1012 (9th Cir. 2012). But since the briefing on standing is so limited, we

conclude that the better course would be to allow the district court to consider the

issue in the first instance.

We vacate the judgment and remand to the district court to determine

whether Davis has Article III standing. If the court answers that question in the

negative, it should dismiss the complaint for lack of jurisdiction. If the court

answers that question in the affirmative, it may reinstate the judgment or conduct

whatever further proceedings it deems appropriate, including revisiting any other

issues raised by the parties. In particular, the court may revisit Davis’s argument

that the Forward Flow Agreement did not convey a right to compel arbitration

because the Forward Flow Agreement excluded the use of arbitration “for

3 collection of debt or otherwise in connection with the Accounts purchased.”

VACATED and REMANDED.

The parties shall bear their own costs.

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