FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBIN L. AVERY, 

Plaintiff-Appellant,

v.

FIRST RESOLUTION MANAGEMENT No. 07-35726

CORPORATION, a foreign D.C. No.

corporation; FIRST RESOLUTION  CV-06-01812-HA

INVESTMENT CORPORATION, an OPINION unregistered entity; DERRICK E.

MCGAVIC, Attorney; KRISTIN K.

FINNEY, Attorney,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, District Judge, Presiding

Argued and Submitted

March 4, 2009—Portland, Oregon

Filed April 2, 2009

Before: Susan P. Graber, Raymond C. Fisher and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

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COUNSEL

Danny H. Gerlt, Portland, Oregon, for the plaintiff-appellant.

David A. Jacobs, Luvaas Cobb, Eugene, Oregon; Daniel N.

Gordon P.C., Eugene, Oregon, for the defendants-appellees.

AVERY v. FIRST RESOLUTION MANAGEMENT 3973
OPINION

MILAN D. SMITH, JR., Circuit Judge: 

Plaintiff-Appellant Robin L. Avery appeals the district

court’s grant of summary judgment in favor of DefendantsAppellees Derrick E. McGavic and Kristin K. Finney (collectively, the Attorneys) and the district court’s denial of Avery’s

request for attorney’s fees from Defendants-Appellees First

Resolution Management Corporation and First Resolution

Investment Corporation (collectively, First Resolution).

Avery claims that the Attorneys attempted to collect a timebarred debt against her in violation of the Fair Debt Collection

Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p. She also

claims that the district court’s refusal to accept supplemental

jurisdiction over First Resolution’s counterclaim against her

entitles her to attorney’s fees as a prevailing party. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm the district

court. 

FACTUAL AND PROCEDURAL BACKGROUND

Avery, an Oregon resident at all relevant times, received an

offer for a credit card from Providian National Bank

(Providian) in July 2001. Avery applied for and received the

card and used it to make several purchases. She received the

billing statements at her Oregon residence and made payments on her card balance, the last of which was credited to

her account on November 5, 2001. At that time, Avery’s balance stood at $2,971.82. Under the terms of the credit card

agreement, Avery was charged interest at 23.99% per annum

on any unpaid balance. The agreement also provided that the

laws of New Hampshire would apply in case of a dispute,

regardless of Avery’s actual residence, and contained an attorney’s fee clause. Avery defaulted on her account and made no

further payments after November 2001. 

Providian assigned the account for collection, and First

Resolution purchased the debt. On November 15, 2004, First

3974 AVERY v. FIRST RESOLUTION MANAGEMENT
Resolution sent Avery a notice identifying itself as the owner

of the debt and indicating that the account information would

be forwarded for collection to a lawyer in Avery’s area if the

debt was not resolved by December 6, 2004. Avery received

a letter dated December 29, 2004, from McGavic, one of the

Attorneys, informing her, as required by 15 U.S.C. § 1692(g)

and (e)(11), that she could dispute her debt in writing and that

First Resolution was considering filing suit. McGavic filed

suit against Avery on behalf of First Resolution on February

9, 2006, in the Washington County Circuit Court of Oregon.

On the day the suit was filed, Avery disputed the debt and

requested verification. Finney, the other of the Attorneys,

responded to Avery’s request for verification in May and provided Avery updates on the amount of the balance in June and

August. On September 13, 2006, McGavic served Avery with

a notice of intent to apply for an Order of Default Judgment.

On September 20, Finney received notice that Avery was represented. The next day, Finney filed a motion to dismiss the

underlying lawsuit without prejudice, allegedly because the

Attorneys had concluded it would be best to avoid protracted

litigation over such a small amount. The Attorneys denied that

the reason they decided to dismiss the lawsuit was because

Avery indicated her intention to pursue a statute of limitations

defense. 

Avery filed suit against First Resolution and the Attorneys

on December 19, 2006, in the United States District Court for

the District of Oregon. On January 31, 2007, First Resolution

filed a counterclaim seeking to collect the debt due on

Avery’s account. Avery moved to dismiss the claim for lack

of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The Attorneys moved for summary judgment

on Avery’s FDCPA claim that they had illegally attempted to

collect a time-barred debt, and Avery made a cross-motion for

summary judgment, arguing that the underlying debt at issue

was time-barred as a matter of law. 

AVERY v. FIRST RESOLUTION MANAGEMENT 3975
The district court found that the underlying debt was not

time-barred and granted the Attorneys’ motion for summary

judgment, denying Avery’s cross-motion for summary judgment on the same issue. The district court also declined to

exercise supplemental jurisdiction over First Resolution’s

counterclaim and dismissed it accordingly, but did not award

Avery attorney’s fees. Avery appealed to this court. 

STANDARD OF REVIEW

We review a district court’s decision on cross-motions for

summary judgment de novo. Arakaki v. Hawaii, 314 F.3d

1091, 1094 (9th Cir. 2002). Summary judgment is appropriately awarded when, viewing the evidence in the light most

favorable to the nonmoving party, there are no genuine issues

of material fact and the district court has correctly applied the

underlying substantive law. Olsen v. Idaho State Bd. of Med.,

363 F.3d 916, 922 (9th Cir. 2004). 

We review the district court’s denial of attorney’s fees and

costs for abuse of discretion. P.N. v. Seattle Sch. Dist., No. 1,

474 F.3d 1165, 1168 (9th Cir. 2007). Elements of legal analysis and statutory interpretation underlying the district court’s

decision are reviewed de novo, and factual findings are

reviewed for clear error. Id.

DISCUSSION

A. Summary Judgment to the Attorneys 

[1] Both parties agree that under the terms of the original

agreement between Avery and Providian National Bank, New

Hampshire law applies to this dispute. Under Oregon law,

applied by the district court sitting in diversity, if a claim is

based upon the law of another state, the limitations period of

that state applies, as do the laws of that state governing tolling

and accrual. OR. REV. STAT. §§ 12.430(1)(a), 12.440. Accordingly, because New Hampshire law covers First Resolution’s

3976 AVERY v. FIRST RESOLUTION MANAGEMENT
claim against Avery, New Hampshire law also controls the

applicable statute of limitations, as well as tolling and accrual

provisions. 

[2] The New Hampshire statute of limitations for an action

on a credit card is three years. N.H. REV. STAT. ANN. § 508:4.

However, this statutory period is tolled if a defendant is

absent from and residing out of the state at the time the cause

of action accrued. Id. § 508:9 (“If the defendant in a personal

action was absent from and residing out of the state at the

time the cause of action accrued, or afterward, the time of

such absence shall be excluded in computing the time limited

for bringing the action.”). Avery contends that “the state”

referred to in the New Hampshire statute should be interpreted to mean “the forum state,” in this case, Oregon, and not

New Hampshire. 

[3] All available case law interpreting this statute suggests

that its intent and purpose is to toll New Hampshire’s statute

of limitations when the defendant is not available to be served

by a plaintiff suing in the state of New Hampshire. Bolduc v.

Richards, 142 A.2d 156, 158 (N.H. 1958) (holding that the

statute of limitations is only tolled when a defendant could not

otherwise be served in New Hampshire due to lack of personal jurisdiction); Quarles v. Bickford, 13 A. 642, 643 (N.H.

1887) (same); see also Atwood v. Bursch, 219 A.2d 285, 287

(N.H. 1966) (holding that the statute of limitations runs only

in favor of those who are within the state). 

[4] Although the analysis in this case is otherwise simple

enough to be addressed in an unpublished opinion, we address

this issue to hold that, under OR. REV. STAT. §§ 12.430 and

12.440, when parties lawfully adopt a state’s law for the purposes of resolving disputes arising from an agreement, they

adopt that state’s statute of limitations provision and tolling

provision in toto. Avery agreed to abide by New Hampshire’s

statute of limitations as well as its tolling provisions, which

have consistently been interpreted by New Hampshire courts

AVERY v. FIRST RESOLUTION MANAGEMENT 3977
to apply when defendants are absent from New Hampshire,

not from any other state. 

Avery’s theory rests on the premise that Oregon’s choice of

law regime converts the foreign jurisdiction’s substantive law

into Oregon’s for the purposes of that lawsuit. That premise

is not borne out by the plain language of the Oregon statutes.

See OR. REV. STAT. § 12.440 (providing “the other state’s statutes and other rules of law governing tolling and accrual

apply”); OR. REV. STAT. § 81.120 (providing “the contractual

rights and duties of the parties are governed by the law or

laws that the parties have chosen”). Taken together, these provisions simply require Oregon courts to apply the substantive

law of another jurisdiction as a court of the foreign jurisdiction would, not to transform that foreign substantive law into

domestic law for a particular case. Avery’s suggested gloss of

New Hampshire’s tolling statute in light of Oregon’s conflict

of law regime is wholly unwarranted; it seeks to take advantage of the portions of New Hampshire law that are favorable

to Avery and ignore the balance. 

Plaintiff contests the constitutionality of the New Hampshire tolling statute’s application to her, citing Abramson v.

Brownstein, 897 F.2d 389 (9th Cir. 1990), which in turn relied

on Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486

U.S. 888 (1988). We need not decide whether the New Hampshire tolling statute’s application to Avery is unconstitutional

because, even if it were, Oregon law provides that Oregon’s

limitation period applies if the limitation period of another

state that otherwise would apply imposes an unfair burden in

defending against the claim. OR. REV. STAT. § 12.450. The

applicable Oregon statute of limitations for contractual claims

is six years, id. § 12.080, and the action against Avery was

filed within six years. 

[5] Because Avery was absent from New Hampshire at all

relevant times, the statute of limitations on the claim against

her was tolled under New Hampshire law and had not run by

3978 AVERY v. FIRST RESOLUTION MANAGEMENT
the time the Attorneys brought suit against her in Oregon.

Even if the New Hampshire tolling statute were unconstitutional, OR. REV. STAT. § 12.450 would replace New Hampshire’s statute of limitations with Oregon’s six-year

limitations period, under which the suit was timely. Accordingly, the district court did not err in granting summary judgment to the Attorneys on the claim that they had violated the

FDCPA by attempting to collect on a time-barred debt. The

district court was also correct in denying Avery’s claim for

summary judgment on this issue.1

B. Attorney’s Fees

In an action where a federal district court exercises subject

matter jurisdiction over a state law claim, so long as state law

does not contradict a valid federal statute, “ ‘state law denying

the right to attorney’s fees or giving a right thereto, which

reflects a substantial policy of the state, should be followed.’ ”

MRO Commc’ns, Inc. v. AT&T Co., 197 F.3d 1276, 1281 (9th

Cir. 1999) (quoting Alyeska Pipeline Serv. Co. v. Wilderness

Soc’y, 421 U.S. 240, 259 n.31 (1975)); see also Mangold v.

Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1478 (9th Cir. 1995).

Under Oregon choice-of-law provisions, the state law chosen

by the parties to control the substantive issue under dispute

also controls the issue of attorney’s fees, unless doing so

would circumvent a fundamental public policy of Oregon law.

Fiedler v. Bowler, 843 P.2d 961, 963 (Or. Ct. App. 1992). In

this case, however, the district court explicitly declined to

exercise subject matter jurisdiction over the state law claim,

so it is unclear whether New Hampshire law or federal law

controls Avery’s entitlement to attorney’s fees on the state

law counterclaim. See MRO Commc’ns, 197 F.3d at 1281

(holding state law controls entitlement to attorney’s fees if the

1Because the claim against Avery was not time-barred, we need not and

do not decide whether the FDCPA prohibits efforts to collect a timebarred debt. 

AVERY v. FIRST RESOLUTION MANAGEMENT 3979
district court exercises subject matter jurisdiction over a state

law claim). 

[6] We need not resolve this question, because Avery has

not established her entitlement to attorney’s fees under either

standard. Although the New Hampshire Supreme Court has

held a party is entitled to attorney’s fees under New Hampshire law when the opposing party recovers nothing on a

claim after a jury trial, see Van Der Stok v. Van Voorhees, 866

A.2d 972, 978 (N.H. 2005), we have not found any case in

which a New Hampshire court held a party is entitled to attorney’s fees when a claim against it is dismissed without prejudice. Under federal law, a prevailing party must have

experienced an alteration in the legal relationship of the parties in order to be entitled to attorney’s fees. Buckhannon Bd.

& Care Home, Inc. v. W. Va. Dep’t of Health & Human Res.,

532 U.S. 598, 605 (2001). Avery’s legal relationship with

First Resolution was not altered by the district court’s dismissal without prejudice of the permissive state law counterclaims because First Resolution was free to refile those

claims. See Oscar v. Alaska Dep’t of Educ. & Early Dev., 541

F.3d 978, 982 (9th Cir. 2008) (holding defendant was not a

prevailing party, because defendant “remains at risk that

Oscar will re-file his IDEA claim in federal court”); cf. Dattner v. Conagra Foods, Inc., 458 F.3d 98, 103 (2d Cir. 2006)

(per curiam) (denying the defendant’s claim for attorney’s

fees because “[a] dismissal on the ground of forum non conveniens does not, after all, immunize a defendant from the risk

of further litigation on the merits of a plaintiff’s claims”).

Accordingly, the district court did not abuse its discretion in

denying Avery’s motion for attorney’s fees and costs. 

AFFIRMED. 

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