Rotkiske v. Paul Klemm, Esq., Dba Nudelman, Klemm & Golub, P.C.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1668
___________
KEVIN C. ROTKISKE,
Appellant
v.
PAUL KLEMM, Esq., DBA Nudelman, Klemm &
Golub, P.C., DBA Nudelman, Nudelman & Ziering, P.C.,
Klemm & Associates; NUDELMAN, KLEMM & GOLUB,
P.C., DBA Nudelman, Nudelman & Ziering, P.C., DBA
Klemm & Associates; NUDELMAN, NUDELMAN &
ZIERING, P.C., DBA Nudelman, Klemm & Golub, P.C.,
Klemm & Associates; KLEMM & ASSOCIATES, DBA
Nudelman, Klemm & Golub, P.C., Nudelman, Nudelman &
Ziering, P.C.; JOHN DOES 1-10
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-15-cv-03638)
District Judge: Honorable Gene E. K. Pratter
___________
Argued January 18, 2017
En Banc Rehearing Ordered September 7, 2017
Reargued En Banc February 21, 2018
Before: SMITH, Chief Judge, McKEE, AMBRO,
CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR.,
VANASKIE, SHWARTZ, KRAUSE, RESTREPO,
BIBAS, and FISHER *, Circuit Judges
(Filed: May 15, 2018)
Matthew B. Weisberg [Argued]
Weisberg Law
7 South Morton Avenue
Morton, PA 19070
Adina H. Rosenbaum, Esq. [Argued]
Public Citizen Litigation Group
1600 20th Street, N.W.
Washington, DC 20009
Counsel for Plaintiff-Appellant
Carl E. Zapffe [Argued]
Fenton & McGarvey Law Firm
2401 Stanley Gault Parkway
Louisville, KY 40223
Counsel for Defendants-Appellees
*
Honorable D. Michael Fisher, United States Circuit
Judge for the Third Circuit, assumed senior status on February
1, 2017.
2
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
This appeal requires us to determine when the statute of
limitations begins to run under the Fair Debt Collection
Practices Act (FDCPA or Act), 91 Stat. 874, 15 U.S.C. § 1692et seq. The Act states that “[a]n action to enforce any liability
created by this subchapter may be brought in any appropriate
United States district court . . . within one year from the date
on which the violation occurs.” 15 U.S.C. § 1692k(d). The
United States Courts of Appeals for the Fourth and Ninth
Circuits have held that the time begins to run not when the
violation occurs, but when it is discovered. See Lembach v.
Bierman, 528 F. App’x 297 (4th Cir. 2013) (per curiam);
Mangum v. Action Collection Serv., Inc., 575 F.3d 935 (9th Cir.
2009). We respectfully disagree. In our view, the Act says what
it means and means what it says: the statute of limitations runs
from “the date on which the violation occurs.” 15 U.S.C.
§ 1692k(d).
I
The relevant facts of this case are undisputed. Appellant
Kevin Rotkiske accumulated credit card debt between 2003
and 2005, which his bank referred to Klemm & Associates
(Klemm) for collection. Klemm sued for payment in March
2008 and attempted service at an address where Rotkiske no
longer lived, but eventually withdrew its suit when it was
unable to locate him. Klemm tried again in January 2009,
3
refiling its suit and attempting service at the same address. 1
Unbeknownst to Rotkiske, somebody at that residence
accepted service on his behalf, and Klemm obtained a default
judgment for around $1,500. Rotkiske discovered the judgment
when he applied for a mortgage in September 2014.
On June 29, 2015, Rotkiske sued Klemm and several
associated individuals and entities asserting, inter alia, that the
above-described collection efforts violated the FDCPA.
Defendants moved to dismiss Rotkiske’s FDCPA claim as
untimely and the United States District Court for the Eastern
District of Pennsylvania agreed. The District Court rejected
Rotkiske’s argument that the Act’s statute of limitations
incorporates a discovery rule which “delays the beginning of a
limitations period until the plaintiff knew of or should have
known of his injury.” Rotkiske v. Klemm, No. 15-3638, 2016
WL 1021140, at *3 (E.D. Pa. Mar. 15, 2016). It found the
“actual statutory language” sufficiently clear that the clock
began to run on Defendants’ “last opportunity to comply with
the statute,” not upon Rotkiske’s discovery of the violation. Id.
at *4. The Court also rejected Rotkiske’s request for equitable
tolling as duplicative of his discovery rule argument. Id. at *5.
Rotkiske timely appealed the judgment of the District
Court and a panel of this Court heard oral argument on January
18, 2017. Prior to issuing an opinion and judgment, on
1
In a certification accompanying Defendants’ motion to
dismiss, Klemm’s managing partner stated that by the time of
the second suit he had moved to a new firm named Nudelman,
Nudelman & Ziering. Because Rotkiske has sued (among
others) both Klemm and Nudelman, and the complaint’s
allegations do not distinguish between them, for the sake of
simplicity we refer only to Klemm.
4
September 7, 2017, the Court sua sponte ordered rehearing en
banc, and argument was held on February 21, 2018.
II 2
“Statutory interpretation, as we always say, begins with
the text.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). The text
at issue in this appeal reads:
An action to enforce any liability created by this
subchapter may be brought in any appropriate
United States district court . . . within one year
from the date on which the violation occurs.
15 U.S.C. § 1692k(d) (emphasis added). In declining
Rotkiske’s request to read the statute to imply a discovery rule,
the District Court found that this language spoke clearly. We
agree, and will affirm its judgment dismissing Rotkiske’s
untimely FDCPA claim.
2
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291. Our
review of an order dismissing a complaint for failure to state a
claim is plenary, Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir.
2005), as is our review of questions of statutory interpretation,
United States v. Zavrel, 384 F.3d 130, 132 (3d Cir. 2004). We
will affirm an order dismissing a complaint only when the
complaint fails to “contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
5
Statutes of limitation provide “security and stability to
human affairs” and are “vital to the welfare of society.” Gabelli
v. S.E.C., 568 U.S. 442, 448–49 (2013) (citations omitted). The
standard rule is that a statute of limitations “commences when
the plaintiff has ‘a complete and present cause of action.’” Bay
Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar
Corp. of Cal., 522 U.S. 192, 201 (1997) (quoting Rawlings v.
Ray, 312 U.S. 96, 98 (1941)). By fixing an end point for civil
liability, Congress advances “the basic policies of all
limitations provisions: repose, elimination of stale claims, and
certainty about a plaintiff’s opportunity for recovery and a
defendant’s potential liabilities.” Gabelli, 568 U.S. at 447–48
(quoting Rotella v. Wood, 528 U.S. 549, 555 (2000)).
We recently summarized the two basic models that “a
legislature may choose” in fixing the start of a limitations
period. G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601,
613 (3d Cir. 2015). First, a statute can run from “the date the
injury actually occurred, an approach known as the ‘occurrence
rule.’” Id. Alternatively, Congress may delay the start of the
limitations period until “the date the aggrieved party knew or
should have known of the injury, that is, the ‘discovery rule.’”
Id.Sometimes Congress clearly picks one model or
another. When a statute of limitations begins to run only when
“the plaintiff acquired or should have acquired actual
knowledge of the existence of such cause of action,” the
discovery rule plainly applies. See, e.g., 29 U.S.C.
§ 1451(f)(2); Bay Area Laundry, 522 U.S. at 204 (interpreting
29 U.S.C. § 1451(f)(2) to impose a discovery rule); Merck &
Co. v. Reynolds, 559 U.S. 633, 648 (2010) (interpreting similar
language in 28 U.S.C. § 1658(b)(1)). Likewise, when Congress
specifies that the “date on which the violation occurs” starts the
6
limitations period, the occurrence rule plainly applies.
Accordingly, we hold that § 1692k(d)’s one-year limitations
period begins to run when a would-be defendant violates the
FDCPA, not when a potential plaintiff discovers or should
have discovered the violation.
Congress does not, of course, always express statutes of
limitations so directly. Instead of expressly enacting an
occurrence or a discovery rule, Congress often articulates
statutes of limitations in terms somewhere between those two
poles. Some statutes of limitations begin when a “claim first
accrue[s].” See, e.g., Gabelli, 568 U.S. at 447–48 (interpreting
28 U.S.C. § 2462). Others start when the “cause of action
arises” or when “liability arises.” See, e.g., McMahon v. United
States, 342 U.S. 25, 27 (1951) (interpreting Suits in Admiralty
Act); Bay Area Laundry, 522 U.S. at 201 (interpreting 29
U.S.C. § 1451(f)(1)). And we have little doubt that an
exhaustive search would yield still other variations—some
subtle, some stark. This appeal does not implicate the less-
determinate language of those statutes, however.
III
Despite the “occurrence” language of the FDCPA,
Rotkiske insists that the discovery rule applies. His argument
relies on the text of the FDCPA, the policies underlying the
Act, decisions of two of our sister courts of appeals finding a
discovery rule in the FDCPA, and decisions of this Court
applying a discovery rule to other federal statutes. We consider
each point in turn.
7
A
For starters, we reject summarily Rotkiske’s assertion
that the text of the FDCPA is silent on the discovery rule. See
Rotkiske Supp. Br. 6. While it is true that the Act does not state
in haec verba that “the discovery rule shall not apply,” the
Supreme Court made clear in TRW Inc. v. Andrews, 534 U.S.
19, 28 (2001), that Congress may “implicitly” provide as
much. In that Fair Credit Reporting Act (FCRA) case, the
Court held that Congress had “implicitly excluded a general
discovery rule by explicitly including a more limited one.” 534
U.S. at 28. The same natural reading applies to the FDCPA in
this appeal: Congress’s explicit choice of an occurrence rule
implicitly excludes a discovery rule. A quotidian example
illustrates why this is so. When a bill states that payment is
timely if it is “received at the bank by 5:00,” it goes without
saying that a check arriving at 6:00 is late even if it was
postmarked a week earlier. Short of the express command that
TRW tells us is not required, it is hard to imagine how Congress
could have more clearly foreclosed the discovery rule.
B
Rotkiske also highlights the remedial purpose of the
FDCPA, which was enacted to combat the national problem of
abusive debt-collection practices. Rotkiske Supp. Br. 10–11.
Rotkiske emphasizes that those practices may involve fraud,
deception, or self-concealing behavior such that the failure to
apply the discovery rule would thwart the principal purpose of
the Act. Id. at 11–13. He warns that “[a]bsent the discovery
rule, vulnerable consumers will be left without redress if the
harm caused by debt collectors’ abusive or deceptive acts
remains concealed for over a year.” Id. at 16. We disagree for
two reasons.
8
First, to the extent Rotkiske contends that the collection
practices the FDCPA proscribes are inherently fraudulent,
deceptive, or self-concealing, the statute belies his argument.
Debtors are often vexed by overzealous or unscrupulous debt
collectors precisely because of repetitive contacts by phone or
mail. As the language of the FDCPA makes clear, many
violations will be apparent to consumers the moment they
occur. See, e.g., 15 U.S.C. § 1692c(a)(1) (proscribing
communication regarding debt collection “at any unusual time
or place”); id. § 1692d (proscribing various forms of
harassment in the service of debt collection, including “[t]he
use of obscene or profane language” and “[t]he publication of
a list of consumers who allegedly refuse to pay debts”); id.
§ 1692f(7) (proscribing “[c]ommunicating with a consumer
regarding a debt by post card”). The Act’s statute of limitations
applies to all of its provisions, so we decline Rotkiske’s
invitation to interpret the Act as if it contemplated only
concealed or fraudulent conduct. 3
3
The fact that the conduct proscribed by the FDCPA
will usually be obvious to its victims distinguishes this case
from our decision in Stephens v. Clash, 796 F.3d 281 (3d Cir.
2015). There, we considered a child sexual abuse claim
governed by a statute that required a filing “within six years
after the right of action first accrues.” 796 F.3d at 285 (quoting
18 U.S.C. § 2255(b) (2012)). We reasoned that since “child
pornography is most often distributed in secret and without the
victim’s immediate knowledge,” the statute’s fundamental
objective of providing redress to exploited children would
most often “be thwarted without the discovery rule.” Id. at
285–86.
9
Second, to the extent that FDCPA claims do deal with
“false, deceptive, or misleading representation[s],” id. § 1692e,
nothing in the Act impairs the discretion district courts possess
to avoid patent unfairness in such cases. As we shall explain,
equitable tolling remains available in appropriate cases.
C
In addition to his textual and purposive arguments,
Rotkiske asks us to follow the Ninth Circuit’s decision in
Mangum v. Action Collection Service, Inc., and the Fourth
Circuit’s decision in Lembach v. Bierman, both of which
implied a discovery rule in the Act’s statute of limitations. We
respectfully decline to do so.
Most fundamentally, neither opinion analyzed the
“violation occurs” language of the FDCPA. In Mangum, the
Ninth Circuit did not engage the text of the Act, relying instead
on its expansive holding in Norman-Bloodsaw v. Lawrence
Berkeley Lab., 135 F.3d 1260, 1266 (9th Cir. 1998), that “the
discovery rule applies to statutes of limitations in federal
litigation.” Mangum, 575 F.3d at 940. The Ninth Circuit did
acknowledge that the Supreme Court had reversed its
application of the Norman-Bloodsaw rule to the FCRA in
TRW. Id. at 940–41. Nevertheless, after brushing aside TRW’s
analysis as “food for thought . . . worth musing on,” id. at 941,
the majority of the panel in Mangum concluded that TRW
neither overruled nor undermined that circuit’s prior precedent
regarding the general applicability of the discovery rule, id. 4
4
Judge O’Scannlain disagreed, relying on essentially
the same reading of the statutory text that we adopt here.
10
Like the Ninth Circuit in Mangum, the Fourth Circuit in
Lembach failed to engage the statutory text on its way to
determining that a discovery rule would vindicate the policies
underlying the FDCPA. Lembach, 528 F. App’x at 302. The
Court reasoned—without mentioning equitable tolling—that
because plaintiffs “had no way of discovering the alleged
violation,” the defendant “should not be allowed to profit from
the statute of limitations when its wrongful acts have been
concealed.” Id. For these reasons, we decline to join either the
Ninth or the Fourth Circuits in holding that the statute means
something other than what it plainly says.
D
In addition to the opinions of our sister courts in
Mangum and Lembach, Rotkiske places substantial weight on
our opinion in Oshiver v. Levin, Fishbein, Sedran & Berman,
38 F.3d 1380 (3d Cir. 1994). In dictum in that case, we applied
the discovery rule to Title VII, even though the statutory
language required charges to be filed within 180 days “after the
alleged unlawful employment practice occurred.” 42 U.S.C.
§ 2000e–5(e).
The problem with Rotkiske’s reliance on Oshiver is that
its dictum is in obvious tension with the Supreme Court’s
decision in TRW. Instead of focusing on the statutory text
(which we relegated to a footnote, 38 F.3d at 1385 n.3), we
described a “general rule” that “the statute of limitations begins
to run . . . [on] the date on which the plaintiff discovers” an
injury rather than “the date on which the wrong that injures the
plaintiff occurs,” id. at 1385 (emphasis in original). The
Mangum, 575 F.3d at 944 (O’Scannlain, J., specially
concurring).
11
Supreme Court’s approach in TRW counsels in favor of
reconsidering our earlier practice of presuming that federal
statutes of limitations include an implied discovery rule.
Indeed, to the extent that our decisions have relied on such a
general presumption in applying a discovery rule to statutes
that expressly begin to run when a violation “occurs,” they
cannot be reconciled with the Supreme Court’s mandate that
when “the text [of a statute] and reasonable inferences from it
give a clear answer,” that is “the end of the matter.” Brown v.
Gardner, 513 U.S. 115, 120 (1994) (citations omitted). See
Oshiver, 38 F.3d at 1385 (presuming applicability of discovery
rule); Podobnik v. U.S. Postal Serv., 409 F.3d 584, 590 (3d Cir.
2005) (same, following Oshiver).
Rather than imply a discovery rule by rote “in the
absence of a contrary directive from Congress,” see, e.g.,
Disabled in Action of Pa. v. S.E. Pa. Transp. Auth., 539 F.3d
199, 209 (3d Cir. 2008), we must parse each limitations period
using ordinary principles of statutory analysis—beginning
with the statutory text and then proceeding to consider its
structure and context. See, e.g., TRW, 534 U.S. at 28–33. As
part of that inquiry into context, it may sometimes prove
appropriate to consider whether there are “historical[] or
equitable reasons” to adopt either an occurrence or a discovery
rule. Gabelli, 568 U.S at 454. See, e.g., TRW, 534 U.S. at 27–
28 (noting that latent disease and medical malpractice, but not
the FCRA, are contexts that “cr[y] out for application of a
discovery rule”); Stephens v. Clash, 796 F.3d 281, 285–88 (3d
Cir. 2015) (noting the secretive nature of trade in child
pornography and the likelihood that an occurrence rule would
frustrate Congress’s objective to provide a remedy to
blameless minor victims). This is not such a case, however,
12
because the text of § 1692k(d) plainly incorporates an
occurrence rule.
IV
We conclude by emphasizing that our holding today
does nothing to undermine the doctrine of equitable tolling.
Indeed, we have already recognized the availability of
equitable tolling for civil suits alleging an FDCPA violation.
See Glover v. F.D.I.C., 698 F.3d 139, 151 (3d Cir. 2012)
(considering and rejecting an equitable tolling argument where
no extraordinary barrier existed to plaintiff’s suit). We do not
reach the question in this case only because Rotkiske failed to
raise it on appeal. Accordingly, our opinion should not be read
to foreclose the possibility that equitable tolling might apply to
FDCPA violations that involve fraudulent, misleading, or self-
concealing conduct. See, e.g., Bailey v. Glover, 88 U.S. (21
Wall.) 342, 348 (1874) (“[W]here the party injured by the fraud
remains in ignorance of it without any fault or want of
diligence or care on his part, the bar . . . does not begin to run
until the fraud is discovered, though there be no special
circumstances or efforts on the part of the party committing the
fraud to conceal it . . . .”). 5
5
If Rotkiske had preserved reliance on equitable tolling
on appeal, then Judges McKee, Ambro, Vanaskie, and Shwartz
would have remanded to allow the District Court to consider
whether he would be entitled to rely on this doctrine because
our precedent had not previously recognized that a defendant’s
self-concealing conduct may be a basis for equitable tolling.
13
V
Civil actions alleging violations of the Fair Debt
Collection Practices Act must be filed within one year from the
date of the violation. Because Rotkiske’s action was filed well
after that period expired, his action was untimely. We will
affirm the judgment of the District Court.
14