St. Pierre v. Retrieval-Masters Creditors Bureau, Inc. , 898 F.3d 351 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 17-1731 & 17-1941
_______________
THOMAS E. ST. PIERRE,
Appellant in No. 17-1731
v.
RETRIEVAL-MASTERS CREDITORS BUREAU, INC.,
Appellant in No. 17-1941
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civil Action No. 3-15-cv-02596)
Honorable Freda L. Wolfson, U.S. District Judge
_______________
Argued: January 23, 2018
Before: GREENAWAY, JR., KRAUSE, Circuit Judges, and
JONES, District Judge.*
*
The Honorable John E. Jones III, United States District
Judge for the Middle District of Pennsylvania, sitting by
designation.
(Opinion Filed: August 7, 2018)
Michael J. Quirk, Esq. [ARGUED]
Berezofsky Law Group
40 West Evergreen Avenue, Suite 104
Philadelphia, PA 19118-3324
Peter Colonna Romano, Esq.
Berezofsky Law Group
Woodland Falls Corporate Center
210 Lake Drive East, Suite 101
Cherry Hill, NJ 08002
Christopher Markos, Esq.
Williams Cedar
1515 Market Street, Suite 1300
Philadelphia, PA 19102
Attorneys for Plaintiff-Appellant Thomas E. St. Pierre
Joel D. Bertocchi, Esq. [ARGUED]
Carlos A. Ortiz, Esq.
Louis J. Manetti, Jr.
David M. Schultz, Esq.
Hinshaw & Culbertson LLP
151 North Franklin Street, Suite 2500
Chicago, IL 60606
Han Sheng Beh, Esq.
Hinshaw & Culbertson
800 Third Avenue, 13th Floor
New York, NY 10022
Attorneys for Defendant-Appellee Retrieval-Masters
Creditors Bureau, Inc.
2
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
In this appeal following the District Court’s dismissal
of Appellant Thomas E. St. Pierre’s class action complaint, we
consider a matter of first impression among the Courts of
Appeals: whether unpaid highway tolls constitute the type of
“debt” that could support a consumer claim under the Fair Debt
Collection Practices Act. Because we conclude they do not,
we will affirm.
I. Background1
A. Factual Background
St. Pierre is a New Jersey resident and the registered
owner of a car that he sometimes drives on New Jersey
highways. On those occasions, he is subject to New Jersey’s
statutory toll requirements, including that “[n]o vehicle shall
be permitted to make use of any highway project or part thereof
1
As this appeal arises from the grant of
a motion to dismiss, we accept as true the factual allegations in
St. Pierre’s amended class action complaint. See Bridge v.
Phx. Bond & Indem. Co., 553 U.S. 639, 642 n.1 (2008). St.
Pierre’s complaint was originally filed in New Jersey state
court before the case was removed to the District Court in April
2015.
3
operated by the New Jersey Turnpike Authority
[(“Authority”)] . . . except upon the payment of such tolls, if
any, as may from time to time be prescribed by the Authority,”
N.J. Stat. Ann. § 27:23-25, and that the owner of the vehicle is
liable for the payment of highway tolls even if “such vehicle
was used or operated” by someone other than the owner, id.
§ 27:23-34.2(b).
Like many car owners in New Jersey, St. Pierre chose
to sign up for New Jersey E-ZPass (“E-ZPass”), an electronic
toll payment program that facilitates toll collection. E-ZPass
accountholders agree to certain terms and conditions (the “E-
ZPass Contract”), including that they maintain a positive
balance in a prepaid E-ZPass account from which the toll fare
is automatically deducted when they pass through an E-ZPass
lane and that their “failure to pay charges posted to [their]
[a]ccount, including tolls, may result in additional penalties as
provided by law.”2 JA 66. When St. Pierre’s E-ZPass account
2
The New Jersey Administrative Code defines E-ZPass
as an “Electronic toll collection system” (“ETC System”),
which is an electronic system “employed or utilized by the
Authority to register and collect the toll required to be paid for
a vehicle entering a toll plaza owned and/or operated by, or
upon the behalf of, the Authority.” N.J. Admin. Code § 19:9-
9.1 (2010). Through E-ZPass, “drivers can establish an
account, prepay tolls and attach a small electronic device,
called a tag or a transponder, to their vehicles. Tolls are
automatically calculated and deducted from the prepaid
account as an E-ZPass customer passes through the toll lanes.”
FAQ’s, NJ E-ZPass,
https://www.ezpassnj.com/en/about/faqs.shtml (last visited
July 12, 2018). The Administrative Code also authorizes the
4
fell into arrears because he failed to maintain a positive
balance, E-ZPass assigned it to Appellee Retrieval-Masters
Credit Bureau, Inc. (“RMCB”), a private debt collection
agency, which, in turn, sent St. Pierre a collection letter “for
outstanding violations owed for toll evasions in the amount of
$1,200.75.”3 JA 70. At issue in this case, however, is not the
letter itself but the envelope in which the letter was sent.
Visible through the glassine window of that envelope was not
only St. Pierre’s name and address, but also a “quick response”
code4 and St. Pierre’s account number.
Authority to adopt a “form of contract” governing the
responsibilities of ETC System subscribers, see N.J. Admin.
Code § 19:9-9.2(h), which New Jersey E-ZPass has utilized by
requiring its subscribers to agree to Terms and Conditions
available by way of hyperlinks on its website. Terms and
Conditions, NJ E-ZPass,
https://www.ezpassnj.com/en/about/i_terms.pdf (last visited
July 12, 2018).
3
St. Pierre’s FDCPA claim is based only on this letter,
which was sent on June 16, 2014. RMCB also had sent St.
Pierre a collection letter in an envelope disclosing the same
information on November 11, 2013, attempting to recover
$60.06 that “consisted of allegedly unpaid tolls and additional
fees.” Appellant’s Br. 4. However, St. Pierre concedes that
the FDCPA’s one-year limitations period, 15 U.S.C.
§ 1692k(d), had expired as to that letter by the time he filed his
complaint on March 2, 2015.
4
Here, a “quick response” code is a code that, “when
scanned by a device such as a smart phone, reveal[s] the same
information as that displayed through the glassine window, as
5
St. Pierre’s amended class action complaint alleges that
the disclosure of these two pieces of information on the
envelope violated the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. §§ 1692a-1692p, which prohibits the
use of any “unfair or unconscionable means to collect or
attempt to collect any debt,” id. § 1692f, including “any
language or symbol, other than the debt collector’s address, on
any envelope when communicating with a consumer by use of
the mails,” id. § 1692f(8). That prohibition, however, applies
only to the collection of a “debt,” which the FDCPA defines as
an “obligation . . . of a consumer to pay money arising out of a
transaction in which the money, property, insurance, or
services which are the subject of the transaction are primarily
for personal, family, or household purposes.” Id. § 1692a(5).
And there lies the crux of this appeal: Do unpaid highway tolls
reflect a consumer’s “obligation . . . arising out of a transaction
in which the . . . services which are the subject of the
transaction are primarily for personal, family, or household
purposes,” id., or a legal obligation in the nature of a tax that
falls outside the scope of the FDCPA?
The District Court concluded the latter. Although it
held as a threshold matter that St. Pierre had alleged an injury
sufficiently “concrete” to confer Article III standing and, by
extension, federal jurisdiction, St. Pierre v. Retrieval-Masters
Creditors Bureau, Inc., No. 15-cv-2596, 2017 WL 1102635, at
*6 (D.N.J. Mar. 24, 2017), it dismissed St. Pierre’s complaint
on the ground that unpaid highway tolls do not constitute
well as a monetary amount corresponding to [a
debtor’s] alleged debt.” Douglass v. Convergent Outsourcing,
765 F.3d 299, 301 (3d Cir. 2014).
6
“debt” and therefore failed to state a claim for a violation of the
FDCPA, id. at *10.
St. Pierre filed this appeal challenging the District
Court’s characterization of the obligation to pay highway tolls,
and RMCB cross-appealed, challenging the Court’s ruling on
standing.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 28
U.S.C. § 1331, and we have jurisdiction pursuant to 28 U.S.C.
§ 1291. We review de novo both the District Court’s decision
to dismiss for failure to state a claim, In re Lipitor Antitrust
Litig., 868 F.3d 231, 249 (3d Cir. 2017), and its conclusion as
to standing, Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d
406, 414 (3d Cir. 2013).
III. Discussion
Because St. Pierre’s standing to bring this case
implicates the Court’s jurisdiction, it must be resolved as a
threshold matter. Hartig Drug Co. v. Senju Pharm. Co., 836
F.3d 261, 269 (3d Cir. 2016). We therefore will address
RMCB’s cross-appeal before turning to the merits of St.
Pierre’s FDCPA claim.5
5
St. Pierre also cross-appealed, asserting that RMCB
lacks standing to challenge this Court’s jurisdiction. We need
not tarry over that argument, for “[e]ven if the parties have not
raised the issue” of standing, this Court would “examine its
authority sua sponte during its review of the case.” Samuel-
Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 395-96 (3d Cir.
7
A. Standing
To establish standing, St. Pierre must allege facts
demonstrating that he suffered (1) an injury-in-fact; (2) that is
fairly traceable to the defendant’s challenged conduct; and
(3) that is likely to be redressed by a favorable judicial
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 590
(1992). RMBC argues that St. Pierre failed to make that
showing because he alleged only a de minimis procedural
violation of the FDCPA and not an injury-in-fact. Although
we previously held in Douglass v. Convergent Outsourcing,
765 F.3d 299 (3d Cir. 2014), that a debt collector’s disclosure
of a debtor’s account number through a glassine window is not
a de minimis violation, RMCB contends the Supreme Court’s
interim decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540
(2016), casts doubt on that holding and requires denial of St.
Pierre’s argument on standing grounds. It does not.
In Spokeo, the Supreme Court provided a lens through
which to determine whether an intangible injury is sufficiently
“concrete and particularized” and “actual or imminent” to
qualify as an injury-in-fact. 136 S. Ct. at 1548. We first ask
“whether an alleged intangible harm has a close relationship to
a harm that has traditionally been regarded as providing a basis
for a lawsuit in English or American Courts.” Id. at 1549. If
so, it is likely to satisfy the injury-in-fact element of standing;
if not, we next ask whether Congress has expressed an intent
to make an injury redressable by “elevat[ing] [it] to the status
of [a] legally cognizable injur[y]” even if that injury was
previously inadequate in law. Id. Here too, if Congress
2004); see Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 360
n.9 (3d Cir. 2013).
8
expressed such an intent, the injury is likely to satisfy Article
III. Thus, while “a bare procedural violation, divorced from
any concrete harm” will not suffice, “the violation of a
procedural right granted by statute can be sufficient in some
circumstances to constitute injury in fact. In other words, a
plaintiff in such a case need not allege any additional harm
beyond the one Congress has identified.” Id.
As we recently observed in In re Horizon Healthcare
Servs. Inc. Data Breach Litig., 846 F.3d 625 (3d Cir. 2017),
however, Spokeo merely “reiterate[d] traditional notions of
standing” and “reemphasize[d] that Congress has the power to
define injuries that were previously inadequate at law,” rather
than “erect[ing] any new barriers that might prevent Congress
from identifying new causes of action though they may be
based on intangible harms.” Id. at 638 (internal quotation
marks omitted). For that reason, we concluded in Horizon that
“the improper disclosure of one’s personal data in violation of
[the Fair Credit Reporting Act] is a cognizable injury for
Article III standing purposes,” id. at 641, and that “the
unauthorized dissemination of personal information . . . causes
an injury in and of itself—whether or not the disclosure of that
information increased the risk of identity theft or some other
future harm,” id. at 639. We also cited approvingly to our prior
precedent—In re Google Inc. Cookie Placement Consumer
Privacy Litigation, 806 F.3d 125 (3d Cir. 2015), where we held
that claims “that the defendants, in the course of serving
advertisements to their personal web browsers, implanted
tracking cookies on their personal computers” alleged
“concrete, particularized, and actual” injuries, id. at 134-35,
and In re Nickelodeon Consumer Privacy Litigation, 827 F.3d
262 (3d Cir. 2016), where we concluded that “the unlawful
disclosure of legally protected information” constitutes “a
9
clear de facto injury,” id. at 272-74—identifying those as other
examples of intangible but concrete injuries that Congress had
defined to protect consumers. Horizon, 846 F.3d at 636-39; id.
at 642-43 (Shwartz, J., concurring).
Spokeo thus reinforces, rather than undermines, our
holding in Douglass. And that holding squarely resolves the
standing issue here. In Douglass, we observed that the
exposure of a plaintiff’s account number through a glassine
window6 “implicates a core concern animating the FDCPA—
the invasion of privacy”—and thus is closely related to harm
that has traditionally been regarded as providing a basis for a
lawsuit in English and American courts. Douglass, 765 F.3d
at 303; see Spokeo, 136 S. Ct. at 1549. We also explained that
even if § 1692f(8) contains a “benign language exception,” the
exposure of a debtor’s account number through a glassine
window “is not benign” because “we cannot find language
exempt from § 1692f(8) if its disclosure on an envelope would
run counter to the very reasons Congress enacted the FDCPA.”
Douglass, 765 F.3d at 303.
As Douglass controls here, the District Court properly
concluded that a violation of § 1692f(8) is a legally cognizable
injury that confers standing on St. Pierre.
6
Here, as in Douglass, we need not reach the question
whether exposure of the “quick response” code on the
envelope, without more, would be sufficient to confer standing
under the FDCPA because exposure of one’s account number
itself suffices. See Douglass, 765 F.3d at 301 n.4.
10
B. Merits
Having satisfied ourselves of our jurisdiction, we turn
to the substance of St. Pierre’s claim under the FDCPA. The
FDCPA, which is a remedial statute passed by Congress in
1977 and geared towards eliminating abusive practices by debt
collectors, creates a private right of action against debt
collectors who violate its provisions. 15 U.S.C. § 1692k; see
also Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir.
2006). “To prevail on an FDCPA claim, a plaintiff must prove
that (1) she is a consumer, (2) the defendant is a debt collector,
(3) the defendant’s challenged practice involves an attempt to
collect a ‘debt’ as the [FDCPA] defines it, and (4) the
defendant has violated a provision of the FDCPA in attempting
to collect the debt.” Douglass, 765 F.3d at 303.
Here, the only disputed prong is the “threshold
requirement” that the prohibited collection practices relate to a
“debt,” Zimmerman v. HBO Affiliate Grp., 834 F.2d 1163,
1167 (3d Cir. 1987), which the FDCPA defines as “any
obligation . . . of a consumer to pay money arising out of a
transaction in which the money, property, insurance, or
services which are the subject of the transaction are primarily
for personal, family, or household purposes,” 15 U.S.C.
§ 1692a(5). As the terms “transaction” and “personal, family,
or household purposes” are not further defined in the statute,
the definition of “debt” has proven elusive.7 In an effort to pin
7
See, e.g., Rosenzweig v. Transworld Sys. Inc, No. 16-
227, 2017 WL 3025557, at *6 (D.N.J. July 14, 2017) (agreeing
with the reasoning of the District Court here and concluding
that highway tolls are not “debt” because “tolls are akin to
taxes for using the particular route”); Yazo v. Law Enf’t Sys.,
11
it down as to highway tolls, we review the few cases to date in
which we have marked its bounds.
1. Relevant Precedent Concerning
FDCPA “Debt”
We have addressed the definition of FDCPA “debt” in
only four cases. In Staub v. Harris, 626 F.2d 275 (3d Cir.
1980), we held that a delinquent per capita tax levied by a
Pennsylvania taxing district against the plaintiffs was not
“debt” encompassed by the FDCPA. Id. at 278. Without
deciding whether the term “‘transaction’ as used in the FDCPA
always connotes the existence of an underlying contractual
relationship,” we concluded that, “at a minimum, the statute
contemplates that the debt has arisen as a result of the rendition
of a service or purchase of property or other item of value.” Id.
By contrast, “[t]he relationship between taxpayer and taxing
authority,” we held, “does not encompass that type of pro tanto
exchange which the statutory definition envisages” because tax
revenue is a “public burden[] imposed generally upon the
inhabitants” used for “nonpersonal purposes [such] as prisons,
roads, defense, courts and other governmental services,” and
“without reference to peculiar benefits to particular
individuals[.]” Id. (quoting Black’s Law Dictionary 1307 (5th
ed. 1979)).
Inc., No. 08-cv-3512, 2008 WL 4852965, at *3 (C.D. Cal. Nov.
7, 2008) (reasoning that because failure to pay highway tolls
violates California law, the court “cannot conclude that the
obligation to pay arose out of a consensual consumer
transaction”).
12
Next, in Zimmerman v. HBO Affiliate Group, 834 F.2d
1163 (3d Cir. 1987), we held that the obligation that arose out
of allegedly abusive collection letters sent by defendant cable
television companies attempting to collect a sum of money to
settle potential tort claims against plaintiffs for the “illegal
reception of HBO signals” was not “debt” under the FDCPA
because the source of the obligation was an “asserted tort
liability” rather than a consensual transaction. Id. at 1165-68.
While we recognized that “the concept of a ‘transaction’ is
broader than that of a contract . . . nothing in the statute or the
legislative history leads us to believe that Congress intended to
equate asserted tort liability with asserted consumer debt” or,
for that matter, that the FDCPA was intended to protect against
“abusive practices in collecting tort settlements from alleged
tortfeasors through threats of legal action.” Id. at 1168.
Over a decade later, in Pollice v. National Tax Funding,
L.P., 225 F.3d 379 (3d Cir. 2000), we addressed whether
homeowners’ obligations to pay their property taxes, as well as
their water and sewer utilities, qualified as “debt” under the
statute.8 Id. at 401. As for the property taxes, we held that
8
As we explain in Tepper v. Amos Fin., LLC, No. 17-
2851, --- F.3d ---- (3d Cir. Aug. 7, 2018), issued
contemporaneously with this opinion, another aspect of
Pollice—that is, our conclusion that the assignee of an
obligation is a “debt collector” under 15 U.S.C. § 1692a(6) if
the obligation is in default at the time of the assignment, 225
F.3d at 403—was recently abrogated by the Supreme Court in
Henson v. Santander Consumer USA Inc., LLC, 137 S. Ct.
1718, 1721 (2017). Henson, however, did not address the
meaning of “debt” under § 1692a(5) and that aspect of Pollice
remains valid and instructive for our purposes here.
13
“Staub [wa]s controlling” because “[u]nlike a sales tax, for
example, which arguably arises from the sale transaction, the
property taxes . . . arose not from the purchase of property but
from the fact of ownership.” Id. at 401-02. We rejected the
plaintiff’s attempt to distinguish Staub on the basis that “the
tax obligations changed in character and became ‘debts’” when
they were assigned to a private entity that was in the business
of purchasing such claims, explaining that even after that
assignment, “there still had not been a ‘transaction’ involving
the homeowners; their obligation to pay [the private entity] still
arose from the levying of taxes.” Id. at 402. We also
concluded that the fact that the homeowners could pay their
delinquent property taxes pursuant to a payment plan did not
distinguish the nature of the property taxes from the per capita
tax in Staub. Id. at 403. In that context, we explained, the
payment plan itself was not the obligation but rather was
“simply [] one aspect of defendants’ course of conduct in
attempting to collect the original . . . obligations which were
owed to the government entities[.]” Id. at 402-03.
We had a different view, however, of the homeowners’
water and sewer utility obligations. Those obligations, we
held, did constitute FDCPA “debt” because “[a]t the time
[they] first arose, homeowners (‘consumers’ of water and
sewer services) had an ‘obligation . . . to pay money’ to the
government entities which arose out of a ‘transaction’
(requesting water and sewer services) the subject of which was
‘services . . . primarily for personal, family, or household
purposes.’” Id. at 400. The consumer’s affirmative “request,”
we explained, transformed the relationship between the
14
government and homeowner into a “transaction,”9 id., and the
flow of the water directly into the household for personal
consumption by the consumer rendered that transaction
“primarily for personal, family, or household purposes,” id.
(quoting 15 U.S.C. § 1692a(5)).
Finally, in Piper v. Portnoff Law Associates, Ltd., 396
F.3d 227 (3d Cir. 2005), we again held that transactions
involving utility services gave rise to “debt” because
“whenever a homeowner voluntarily elects to avail himself of
municipal water/sewer services, in whatever manner, and
thereby incurs an obligation to pay for such services, there is
the kind of pro tanto exchange contemplated by the FDCPA.”
Id. at 233 n.8. We also observed that “[t]he consensual nature
of the transaction distinguishe[d] [Pennsylvania water and
sewer service] from tax assessments which Pollice held to not
be debts within the meaning of the FDCPA,” emphasizing that
the consumer’s usage “was metered in the normal fashion and
. . . the amount of their obligation to pay was based on the
amount of water they chose to use.” Id.
9
In clarifying that the homeowners’ water and sewer
obligations constituted “debt” under the FDCPA “even though
the government entities did not extend homeowners any right
to defer payment of their obligations,” Pollice, 225 F.3d at 401,
we also expressly “disavowed” our dictum in Zimmerman
where we had stated that “the type of transaction which may
give rise to a ‘debt’ as defined in the FDCPA” is
“one involving the offer or extension of credit to a consumer,”
id. (quoting Zimmerman, 834 F.2d at 1168) (emphasis
omitted).
15
From these cases, we distill a three-part test to evaluate
whether an obligation constitutes “debt” under the FDCPA.
First, we consider whether the underlying obligation “aris[es]
out of a transaction,” 15 U.S.C. § 1692a(5)—that is, a
consensual exchange involving an affirmative “request,”
Pollice, 225 F.3d at 400, and “the rendition of a service or
purchase of property or other item of value,” Staub, 626 F.2d
at 278, such as a contract—or whether, instead, it arises by
virtue of a legal status—that is, an involuntary obligation
attendant to the fact of having a specific legal status such as
that of a property owner, see Pollice, 225 F.3d at 401, legal
resident, see Staub, 626 F.2d at 278, or tortfeasor or other type
of offender under criminal or civil law, see Zimmerman, 834
F.2d at 1168.10
10
The other Courts of Appeals that have considered the
meaning of FDCPA “debt” have likewise excluded from
coverage those obligations that arise out of a legal status rather
than a consensual exchange of goods or services. See, e.g.,
Boyd v. J.E. Robert Co., 765 F.3d 123, 126 n.4 (2d Cir. 2014)
(holding the obligation to pay water and sewer charges in New
York City did not constitute “debt” because, unlike the
“character” of the water and sewer obligations in Pollice,
“nothing in the record here suggests that plaintiffs must
‘request’ water and sewer services in order to be charged by
the City. Rather, the charges are levied automatically in
connection with the property ownership”) (emphasis added);
Gulley v. Markoff & Krasny, 664 F.3d 1073, 1074-75 (7th Cir.
2011) (holding the obligation to pay government-imposed
fines is not “debt” under the FDCPA because a “fine is a
penalty imposed for breaking the law—not the result of a
consensual transaction”); Hawthorne v. Mac Adjustment, Inc.,
140 F.3d 1367, 1371-72 (11th Cir. 1998) (holding the
16
Second, if we conclude that the obligation arises out of
a transaction, we next identify what “money, property,
insurance, or services . . . [] are the subject of the transaction,”
15 U.S.C. § 1692a(5), i.e., what it is that is being rendered in
exchange for the monetary payment. And third, we consider
the characteristics of that “money, property, insurance, or
services” to ascertain whether they are “primarily for personal,
family, or household purposes.” Id.
2. The Obligation to Pay Highway Tolls
Applying this framework to the obligation to pay
highway tolls, we conclude it does not satisfy the definition of
“debt” under the FDCPA.
Step One: Arising out of a Transaction. At the first step,
we consider the two arguments raised by St. Pierre as to why
the obligation to pay highway tolls arises out of a “transaction.”
His first, that the transaction out of which his obligation to pay
highway tolls arises is the E-ZPass Contract, is a non-starter.
We were clear in Pollice that the original source of the
obligation—not the subsequent method of collection—
determines whether an obligation constitutes “debt” under the
FDCPA, 225 F.3d at 402, and, like the payment plan in Pollice,
obligation of a tortfeasor to pay damages is not “debt” under
the FDCPA because it is not a “consensual or contractual
arrangement” but rather amounts to a “damage obligation[]
thrust upon one as a result of no more than her own
negligence”); Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.
2009) (same); Bass v. Stolper, Koritzinsky, Brewster & Neider,
S.C., 111 F.3d 1322, 1326 (7th Cir. 1997) (same).
17
the contract with E-ZPass is merely “directed toward the
collection of the original obligations, not any obligations which
may have arisen from [the E-ZPass Contract],” id. at 403.
St. Pierre attempts to distinguish Pollice by arguing that
the E-ZPass Contract imposes a $50 per violation fee even for
“inadvertent violations” that are otherwise exempted by
statute. Reply Br. 10-11. But this too is a false start. St. Pierre
cites to no authority for that reading of the E-ZPass Contract,
and the E-ZPass Contract expressly provides that drivers are
required to pay penalties only “as required by law,” JA 66, and
thus appears coextensive with the statutory requirement that
“an owner that proves an inadvertent toll violation has occurred
shall be required only to pay the toll and shall not incur the
administrative fee.”11 N.J. Admin. Code § 19:9-9.2(b).
11
As the District Court observed, we do not foreclose
the “possib[ility] that certain obligations, unrelated to tolls and
penalties, may arise out of the [E-ZPass Contract],” St. Pierre,
2017 WL 1102635, at *10 n.6, and thus amount to independent
liabilities that qualify as “debt,” see, e.g., Brown v. Transurban
USA, Inc., 144 F. Supp. 3d 809, 842 (E.D. Va. 2015) (holding
that E-ZPass “overcharges” that arose out of the E-ZPass
contract itself were “properly understood” as a consensual
transaction). Here, while the District Court astutely observed
that the E-ZPass monthly membership fee of $1 “could
arguably be considered a ‘debt’ because it was created by the
[E-ZPass Contract], and not by operation of law,” St. Pierre,
2017 WL 1102635, at *10 n.6, St. Pierre does not allege that
RMCB attempted to collect the $1 membership fee, and, even
if he had, he would be hard pressed to explain how that distinct
and de minimis obligation could convert the obligation to pay
18
St. Pierre makes more headway with his second
argument in support of a “transaction,” i.e., that he did not have
to drive on the toll roads and voluntarily chose to do so. Here,
we find the analogy to the utilities in Piper compelling: Just
as “a homeowner voluntarily elects to avail himself of
municipal water/sewer services . . . and thereby incurs an
obligation to pay for such services . . . based on the amount of
water [the homeowner] chose to use,” 396 F.3d at 233 n.8, so
too does St. Pierre, by electing to drive on toll roads (or
authorizing another driver to do so in his vehicle), “voluntarily
elects to avail himself” of the Authority’s highway services in
exchange for a per-use fee—a classic pro tanto exchange, id.
We acknowledge this presents a closer case than Piper
in two respects. For one, the obligation to pay highway tolls is
non-consensual in the sense that it involves a statutory
requirement. But that is not dispositive: In Pollice, we
recognized that water and sewer obligations were “debt,”
notwithstanding the fact that “a City ordinance . . . provides for
a twelve percent annual rate of interest on claims for unpaid
sewer charges,” 225 F.3d at 386, and we observed in dictum
that a sales tax—which is, of course, a statutorily-imposed
obligation—might constitute “debt” because, unlike property
tax, sales tax “arguably arises from the sale transaction” for
goods or services rather than “from the fact of ownership,” id.
at 402. In neither discussion did we indicate that the mere
codification of an obligation precluded the exchange from
constituting a transaction.
highway tolls into one that arises out of the E-ZPass Contract,
see Pollice, 225 F.3d at 402-03.
19
For another, highway tolls are, in a sense, a “tax for the
use of highways,” Safeway Trails, Inc. v. Furman, 197 A.2d
366, 376 (N.J. 1964), and there is some facial appeal to the
argument that highway tolls, like the property taxes in Pollice,
derive “from the fact of ownership,” 225 F.3d at 402, because
liability is assessed on the registered owner of the vehicle that
made use of the “highway,” N.J. Stat. Ann. § 27:23-25, even if
that vehicle was operated by a different driver, id. § 27:23-
34.2(b). But in contrast to the property taxes in Pollice, or the
per capita taxes in Staub, the liability imposed on vehicle
owners is not merely from the fact of ownership or residency
but from the voluntary election to drive the owned vehicle on
toll roads. See Pollice, 225 F.3d at 401; Staub, 626 F.2d at 278.
That is, St. Pierre would have no obligation to pay highway
tolls had he chosen to use alternative routes or to keep his car
parked rather than drive on the Authority’s roads; the
homeowners in Pollice and the residents in Staub had no such
choice.
In sum, St. Pierre’s obligation to pay highway tolls does
arise out of a “transaction” within the meaning of the FDCPA,
15 U.S.C. § 1692a(5), but while that gives him some
momentum, he cannot cross the finish line for an FDCPA claim
unless “the subject of the transaction [is] primarily for
personal, family, or household purposes,” id. We thus turn to
the next step of our inquiry.
Step Two: The Subject of the Transaction. Before we
can determine whether the subject of a transaction is “primarily
for personal, family, or household purposes,” id., we must
identify the subject of the transaction itself: what is being
rendered in exchange for payment? Here is where the
proverbial rubber meets the road, for while St. Pierre contends
20
that what he receives is access to New Jersey highways and
bridges, what is “payable from tolls” under the New Jersey
statute is the Authority’s mandate to “facilitate vehicular traffic
and remove the present handicaps and hazards on the
congested highways in [New Jersey],” and “to acquire,
construct, maintain, improve, manage, repair and operate
transportation projects.” N.J. Stat. Ann. § 27:23-1. As the
New Jersey Supreme Court observed in City of East Orange v.
Palmer, the Authority’s mission is “the construction and
operation of a highway, on a self-sustaining toll basis.” 245
A.2d 327, 330 (N.J. 1968).
The toll booths dispersed throughout the roads, in other
words, are merely the collection point for tolls, and access to
the roads or bridges is thus incident to the payment of tolls, not
the service rendered in exchange for them. Instead, highway
tolls “compensate the state for the cost, maintenance and repair
of its highways,” Safeway Trails, 197 A.2d at 375, and in
exchange for those tolls all drivers benefit from “safer, faster,
and more convenient travel in and through the State,” id. at
370.
Step Three: The Primary Purpose of the Subject of the
Transaction. Having identified the services rendered in
exchange for highway tolls, it is clear that what St. Pierre
receives in exchange for the payment of highway tolls is not
the private benefit of a “personal, family, or household” service
or good but the very public benefit of highway maintenance
and repair. 15 U.S.C. § 1692a(5). This stands in stark contrast
to the services rendered in Pollice and Piper, where, as the
District Court recognized, “the homeowners consumed the
water and sewer services, within the confines of their home,
for their personal benefit,” St. Pierre, 2017 WL 1102635, at
21
*8, or, for that matter, any transaction in which the service
rendered in exchange for the consumer’s money is personal or
individual to the consumer, see, e.g., Franklin v. Parking
Revenue Recovery Servs., Inc., 832 F.3d 741, 745 (7th Cir.
2016) (holding that the obligation to pay for an individual
parking space in a government-owned parking lot constitutes
FDCPA “debt”). Rather, the public nature of the construction,
maintenance, or operations of highways steers the obligation
away from a “debt” and towards the tax obligations in Staub,
which, as we observed there, were not primarily personal
because they were “used for more general purposes.” 626 F.2d
at 278.
Moreover, the fact that highway tolls resemble taxes—
while not a sufficient basis on which to conclude they do not
arise out of a “transaction” at the first stage of our inquiry—
does at this step reinforce the conclusion that the services
rendered are not primarily for personal purposes. Like taxes,
highway tolls are imposed for public benefit and “without
reference to peculiar benefits to particular individuals or
property.” Staub, 626 F.2d at 278 (quoting Black’s Law
Dictionary 1307 (5th ed. 1979)). While one component of the
obligation to pay highway tolls is the distance traveled, it is
also, like taxes, largely determined categorically by the type
and class of vehicle being driven12 and thus is not simply
“metered in the normal fashion . . . based on the amount
[used].” Piper, 396 F.3d at 233 n.8. And just as the amount
paid in taxes does not entitle an individual taxpayer to “better”
parks, schools, or government systems, the amount paid in tolls
12
See New Jersey Turnpike Authority Toll Calculator,
http://www.njta.com/toll-calculator (last visited July 12,
2018).
22
does not entitle the payor to better maintenance or construction
of highways. Rather, to the extent the services rendered by the
Authority benefit an individual like St. Pierre, they do so only
“secondarily.” Staub, 626 F.2d at 278 (internal quotation
marks omitted).
Focusing on access to the roads, St. Pierre contends that
the benefit is personal and protests that because “[t]he FDCPA
defines covered consumer debt based on the alleged debtor’s—
not a creditor’s—purposes,” his obligation to pay highway tolls
should be considered “debt” because his purpose was to attain
access not available to the general public and to serve the
personal purpose of getting where he was going. Appellant’s
Br. 20-21. That argument, however, mistakenly conflates two
distinct inquiries: whether, subjectively, an individual chooses
to enter into the transaction primarily for his own personal
purposes, and whether, objectively, the subject of the
transaction—that is, “the money, property, insurance, or
services” being rendered, 15 U.S.C. § 1692a(5)—is primarily
for personal purposes. While in some cases, the two will be
aligned, as in the case of utilities, e.g., Pollice, 225 F.3d at 400,
they are not where the subject of the transaction is the rendition
of services that benefit the public generally. And here, even
accepting that road access could be considered a good or
service in exchange for toll payments—and not merely an
opportunity for toll collection—the other, far more significant
services rendered by the Authority in exchange for highway
tolls are the public services that follow from its statutory
mandate, funded through tolls, “to acquire, construct, maintain,
improve, manage, repair and operate transportation projects.”
N.J. Stat. Ann. § 27:23-1. The subject of the transaction, in
other words, would still not be “primarily” for personal
purposes.
23
In sum, the FDCPA is not implicated where, as here, the
bulk, if not all of the services rendered, are made “without
reference to peculiar benefits to particular individuals or
property.” Staub, 626 F.2d at 278 (quoting Black’s Law
Dictionary 1307 (5th ed. 1979)). St. Pierre’s toll liability thus
does not constitute “an[] obligation . . . primarily for personal,
family, or household purposes,” and does not qualify as “debt”
under the FDCPA. 15 U.S.C. § 1692a(5).
IV. Conclusion
For the foregoing reasons, we will affirm the judgment
of the District Court.
24