                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 04 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ERIC NOEL,                                       No. 12-35839

              Plaintiff - Appellant,             D.C. No. 3:99-cv-00649-AC

  v.
                                                 MEMORANDUM *
SANDRA A. HALL, aka Sandra Johnson;
GABRIELLE S. LENNARTZ; HERB
WEISSER; MICHELLE A. MERCHANT;
MYRNA A. HALL, Trustee and personal
representative of the Estate of Brian C.
Hall, deceased,

              Defendants - Appellees.



                  Appeal from the United States District Court
                            for the District of Oregon
                Ancer L. Haggerty, Senior District Judge, Presiding

                             Submitted May 31, 2013 **




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). We dismiss as moot the
parties’ cross-motions for summary disposition.
Before: PREGERSON and REINHARDT, Circuit Judges, and STROM, District
Judge.***

      This appeal marks the third appearance before this court of the parties’ long-

running feud over a horse, a mobile home, and recorded telephone conversations.

See Noel v. Hall (Noel I), 341 F.3d 1148 (9th Cir. 2003); Noel v. Hall (Noel II),

568 F.3d 743 (9th Cir. 2009). Plaintiff Eric Noel appeals from the district judge’s

entry of summary judgment in favor of Defendants Sandra and Myrna Hall (the

latter as personal representative of the estate of Brian Hall) and Gabrielle Lennartz

(collectively, “Defendants”) on his claims alleging violations of the federal

Wiretap Act, 18 U.S.C. §§ 2510 et seq. The district judge issued a final judgment

in favor of these Defendants pursuant to Fed. R. Civ. P. 54(b), and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

      1.      The district judge correctly held that Noel was not an “electronic

communication service” within the meaning of the Wiretap Act, 18 U.S.C.

§ 2510(15). Noel’s own evidence demonstrates that he simply arranged for

telephone service for three businesses (two equestrian-related, and a real estate

company) that he owned and/or operated. Further, even if he were an “electronic

communication service,” Noel did not store Defendants’ telephone calls “for


        ***
              The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.

                                           2
purposes of backup protection of such communication” pursuant to the provision

of such service, as he must have for the tapes he recorded to constitute “wire

communications” forming the basis of a Wiretap Act violation by Defendants. 18

U.S.C. § 2510(1), (17)(B) (2000). Noel’s own affidavit states that he stored these

communications for his own use—not as part of any “backup protection” incident

to providing communications service. He offers only his own contradictory

statements to suggest otherwise.

      2.     The district judge also correctly determined that our ruling in Noel II

compels the conclusion that Defendants are entitled to summary judgment on

Noel’s Wiretap Act claims. Noel’s contention, that Noel II has been undermined

by the subsequent vacatur of a 1999 Washington state court decision, is meritless.

Our opinion did not rely on the state court’s factual or legal conclusions. See Noel

II, 568 F.3d at 751 & n.13 (noting that neither party asserted the binding effect of

the state court decision, and assuming arguendo facts inconsistent with it). In any

event, Noel himself concedes the factual basis of the state court decision: that he

recorded Defendants’ communications. His only argument that a different legal

result should prevail is that he himself was an “electronic communication

service”—a contention we reject above.

      AFFIRMED.


                                          3
