Tawanda Jones v. David Dufek, Sr.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 12, 2016 Decided July 26, 2016
No. 15-7013
TAWANDA JONES,
APPELLANT
v.
DAVID SEAN DUFEK, SR. AND CACH, LLC,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00533)
Radi Dennis argued the cause and filed the briefs for
appellant.
Manuel H. Newburger argued the cause for appellees. On
the brief was Mikhael D. Charnoff.
Before: HENDERSON and KAVANAUGH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: Tawanda Jones owed
$1,050.29 to Bank of America. Bank of America sold the debt
2
to CACH, LLC. That company hired the Law Office of David
Sean Dufek in San Diego, California, to help it collect on the
debt. In 2013, Dufek sent Jones the following letter:
Dear TAWANDA JONES,
This office has been retained to collect the debt owed
by you to CACH, LLC.
As of the date of this letter you owe the sum of
$1,050.29. Because of interest, late charges and other
charges that may vary from day to day the amount due
on the day you pay may be greater.
You are hereby advised: Unless you, the consumer,
notify this office within thirty days after receipt of this
notice that you dispute the validity of this debt or any
portion thereof, the debt will be assumed to be valid by
this office. If you, the consumer, notify this office in
writing within thirty days after receipt of this notice,
that the debt or any portion thereof is disputed, this
office will obtain verification of the debt or a copy of a
judgment against you and a copy of such verification or
judgment will be mailed to you by this office. Upon
your written request within thirty days after receipt of
this notice this office will provide you with the name
and address of the original creditor, if different from the
current creditor.
Please remit your payment to: David Sean Dufek
[Address]
If you would like to make a payment online, please visit
our website: [website URL]
3
Please call our office. The toll free number is
[telephone number].
Sincerely,
[Signature]
Attorney David Sean Dufek
Please be advised that we are acting in our capacity as
a debt collector and at this time, no attorney with our
law firm has personally reviewed the particular
circumstances of your account.
Be advised this is an attempt to collect a debt. Any
information obtained will be used for that purpose.
The letter appeared entirely on one sheet of letterhead captioned
at the top with the words “Law Office of David Sean Dufek.”
The text of the letter, as well as the disclaimers below the
signature block, were in the same readable font and size.
Jones alleges that this letter was deceptive and violated
three statutes: the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692 et seq.; the District of Columbia Consumer Protection
Procedures Act, D.C. CODE § 28-3901 et seq.; and the District
of Columbia Debt Collection Law, D.C. CODE § 28-3814 et seq.
She relies on different sections of each of these statutes, but
there is one basic argument underlying all of her claims: that the
letter falsely implies both that Dufek is meaningfully involved
with the case as an attorney and that the creditor is threatening
to bring a lawsuit to collect the debt. We disagree. The letter
does not threaten any legal action, and the prominent disclaimer
made clear that Dufek was acting only in his capacity as a debt
collector.
4
Section 1692e of the Fair Debt Collection Practices Act
prohibits debt collectors from using “any false, deceptive, or
misleading representation or means in connection with the
collection of any debt.” 15 U.S.C. § 1692e. One such
“representation or means” is a “false representation or
implication that any individual is an attorney or that any
communication is from an attorney.” 15 U.S.C. § 1692e(3). At
first glance this section seems inapplicable. Dufek is an
attorney, and reporting that fact cannot be a “false
representation.”1 Id. But courts that have considered this
question – ours is not among them – have held that “some
degree of attorney involvement is required before a letter will be
considered ‘from an attorney’ within the meaning of the [federal
act].” Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 301
(2d Cir. 2003); see also Gonzalez v. Kay, 577 F.3d 600, 604 (5th
Cir. 2009). That means that if an attorney is acting only as a
debt collector and has not formed a legal opinion about the case,
he or she cannot send a letter implying otherwise. In other
words, when attorneys attempt to collect a debt, they cannot
mislead debtors about their “level of involvement” in the case.
Greco v. Trauner, Cohen & Thomas, LLP, 412 F.3d 360, 364
(2d Cir. 2005).
The district court decided Jones’s claims on a motion for
judgment on the pleadings under Rule 12(c), a decision we
review de novo. See Mpoy v. Rhee, 758 F.3d 285, 287 (D.C. Cir.
1
Jones has belatedly tried to contest certain historical facts,
including whether Dufek himself sent the letter and whether Dufek
exists at all. These additional claims largely rehash Jones’s main
argument that Dufek misrepresented his involvement in the case. To
the extent these claims differ from that overarching argument, Jones
did not raise them in the district court and we will not consider them
now. See Anglers Conservation Network v. Pritzker, 809 F.3d 664,
671 n.6 (D.C. Cir. 2016).
5
2014). Applying a “least sophisticated consumer standard,”2 the
court found that the letter did not misrepresent the extent of
Dufek’s involvement in the case, and we agree. See Jones v.
Law Office of David Sean Dufek, 77 F. Supp. 3d 134, 138, 140
(D.D.C. 2015). Dufek was an attorney acting as a debt collector,
and the letter said precisely that. No one at his law office had
reviewed the case. Again, the letter so stated.
Jones argues that using the title “attorney” in the letterhead
and signature block impermissibly implies that an attorney has
evaluated the case from a legal standpoint. Appellant Br. 31-32;
see Avila v. Rubin, 84 F.3d 222, 229 (7th Cir. 1996). This boils
down to the argument that under the federal act, attorneys
cannot act as debt collectors unless they conceal the fact that
they are attorneys. But this is not the theory of the Fair Debt
Collection Practices Act. The Act assumes that attorneys may
collect debts so long as they do not mislead debtors. See Greco,
412 F.3d at 364.
2
In evaluating whether a collection letter is deceptive, some
courts have applied a “least sophisticated consumer” standard, see,
e.g., Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993), and
others have applied an “unsophisticated consumer” standard, see, e.g.,
Gammon v. GC Servs. Ltd., 27 F.3d 1254, 1257 (7th Cir. 1994). The
term “unsophisticated” is probably more accurate because the “least
sophisticated” consumer is “not merely ‘below average,’ he is the very
last rung on the sophistication ladder,” and “would likely not be able
to read a collection notice with care (or at all), let alone interpret it in
a reasonable fashion.” 27 F.3d at 1257. In practice, “least
sophisticated” and “unsophisticated” appear to be the same. Under
either conception, the basic goal is to prevent debt collectors from
deceiving naive consumers, but not to hold collectors liable simply
because their letters may be deceptive under “bizarre or idiosyncratic
consumer interpretations.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th
Cir. 2009).
6
Attorneys who collect debts therefore must not falsely
represent or imply that they have formed a legal opinion
regarding the debtor’s liability. Here, Dufek included a
conspicuous disclaimer describing his involvement in the matter.
The letter did not threaten any legal action “that [could not]
legally be taken or that [was] not intended to be taken.” 15
U.S.C. § 1692e(5). The letter made no reference to legal action.
See Brown v. Card Serv. Ctr., 464 F.3d 450, 451 (3d Cir. 2006)
(“Refusal to cooperate could result in a legal suit being filed for
collection of the account.”); Bentley v. Great Lakes Collection
Bureau, 6 F.3d 60, 62 (2d Cir. 1993). The letter did not give any
indication about what the creditor might do if Jones failed to pay
the debt. It simply said that Jones owed a debt and that she
should send her payment to Dufek’s office. The only future
consequence the letter discussed was the statutorily required
disclosure that if Jones did not dispute the debt’s validity within
thirty days, Dufek’s office would presume that it was valid. See
15 U.S.C. § 1692g(a)(3).
Here again, Jones falls back on the idea that using the
“attorney” title is enough to constitute an implicit threat of legal
action. But lawyers do more than just file lawsuits. Sometimes,
they try to collect debts, and the Fair Debt Collection Practices
Act does not prohibit them from doing so. The fact that an
attorney was involved in collecting Jones’s debt does not mean
that the collection attempt constituted a threat to take legal
action.3
3
Jones also alleged that Dufek misrepresented that he “was
authorized to take legal action against consumers in the District of
Columbia, because Dufek is a California law firm not licensed to
practice law in the District of Columbia.” Jones, 77 F. Supp. 3d at
138. But Dufek’s letter said nothing about his intention or authority
to file a lawsuit.
7
Jones criticizes the letter’s disclaimer for stating only that
no attorney had reviewed the case “at this time.” Appellant Br.
42. According to Jones, these words imply that at some future
time, an attorney may review the case and file a lawsuit. That
may be so. But the federal act prohibits only threats to take
legal action; merely leaving open the possibility of attorney
review that could lead to legal action does not fit the bill.
The disclaimer Dufek included is commonly known as a
“Greco disclaimer,” see, e.g., Luftig v. Sokoloff, No.
13-CV-4313, 2015 WL 151463, at *1 n.1 (E.D.N.Y. Jan. 13,
2015), because it tracks language the Second Circuit approved
in Greco v. Trauner, Cohen & Thomas, LLP, 412 F.3d 360 (2d
Cir. 2005). The collection letter in Greco stated: “At this time,
no attorney with this firm has personally reviewed the particular
circumstances of your account. However, if you fail to contact
this office, our client may consider additional remedies to
recover the balance due.” 412 F.3d at 361. The Second Circuit
held that this language was sufficient to “make clear . . . that the
law firm or attorney sending the letter [was] not, at the time of
the letter’s transmission, acting as an attorney.” Id. at 364.
Since Greco, many circuits have agreed that a prominent
and clear disclaimer stating that an attorney is acting as a debt
collector is enough, but a hidden or confusing disclaimer is not.
See, e.g., Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055,
1063 (9th Cir. 2011); Lesher v. Law Offices of Mitchell N. Kay,
PC, 650 F.3d 993, 1002-03 (3d Cir. 2011); Gonzalez v. Kay, 577
F.3d 600, 606 (5th Cir. 2009); Kistner v. Law Offices of Michael
P. Margelefsky, LLC, 518 F.3d 433, 439 (6th Cir. 2008). Jones
argues that the disclaimer in Dufek’s letter was “obscured”
because it followed the signature block rather than appearing in
the body of the letter. Appellant Br. 14. But there is no relevant
difference we perceive between a disclaimer in the body of the
letter before the signature block and one after the signature
8
block. Dufek’s disclaimer was in the same font and size as the
body of the letter, and a portion of it was in bold typeface.
Compare Kistner, 518 F.3d at 439 (“no disclaimer”); Gonzalez,
577 F.3d at 606 (“disclaimer on the back [of the letter]”); Wilson
v. Quadramed Corp., 225 F.3d 350, 358 (3d Cir. 2000)
(disclaimer in “grey ink on a light shade of grey computer paper,
making it difficult to read, and in a type size less than 1/10 [of
an inch]”); see also Campuzano–Burgos v. Midland Credit
Mgmt., 550 F.3d 294, 299 (3d Cir. 2008) (“Even the least
sophisticated debtor is bound to read collection notices in their
entirety.”). We do not mean to imply that a disclaimer must be
in the same font and size as the body of the letter, but the fact
that it was in this case further indicates that this disclaimer was
not hidden.
Jones’s argument focuses on § 1692e(3) and (5) of the
federal act, which deal with attorney involvement and threats of
legal action. In passing, she invokes several other sections
containing general prohibitions against deception, unfairness,
and false representations in connection with debt collection.4
She offers no separate arguments in support of these claims.
Instead, she simply says that because the letter falsely implied
than an attorney was involved and threatened legal action, the
letter was a fortiori deceptive and unfair in a general sense. We
4
In addition to 15 U.S.C. § 1692e(3) and (5), Jones relies on
§ 1692e(2)(A) (prohibiting “[t]he false representation of . . . the
character, amount, or legal status of any debt”); § 1692e(10)
(prohibiting “[t]he use of any false representation or deceptive means
to collect or attempt to collect any debt or to obtain information
concerning a consumer”); § 1692j(a) (prohibiting the use of forms that
create “the false belief in a consumer that a person other than the
creditor of such consumer is participating in the collection of or in an
attempt to collect a debt”); and § 1692f (prohibiting “unfair or
unconscionable means to collect or attempt to collect any debt”).
9
have held that the letter did not contain any such false
implications or threats, so we reject the remainder of her
arguments under the federal act.
We dispose of her claims under the District of Columbia
statutes on similar grounds. Jones argues that Dufek and CACH
violated the D.C. Consumer Protection Act, which protects “any
consumer” from misrepresentation, misleading omissions, and
other “[u]nlawful trade practices.” D.C. CODE § 28-3904. But
here too, Jones relies entirely on her allegations that the letter
falsely implied that an attorney was involved and that the
defendants were threatening a lawsuit. In their briefs, the parties
argue at length about certain threshold issues – in particular,
whether Jones is a “consumer” or debt collection is a “trade
practice.” The district court concluded that the D.C. Act did not
apply because “a loan of money is not a purchase or lease of
goods or services.” Jones, 77 F. Supp. 3d at 139 (italics
omitted). The court’s interpretation may be incorrect; the D.C.
Act states specifically that “goods and services . . . includes
consumer credit . . ..” D.C. CODE § 28-3901(a)(7). However,
even if the court erred, its mistake was not fatal. The district
court’s interpretation was only an “additional reason” that
Jones’s claims under the Consumer Protection Act fail. Jones,
77 F. Supp. 3d at 139. Even if the Act applied, it would not help
Jones because the letter did not falsely imply attorney
involvement or threaten a lawsuit. We therefore affirm the
district court’s dismissal of this claim without reaching the
court’s interpretation of the scope of the Consumer Protection
Act.
The other consumer statute Jones invokes – the D.C. Debt
Collection Law – largely mirrors the language of the Fair Debt
Collection Practices Act. Compare D.C. CODE § 28-3814(f)
(prohibiting “any fraudulent, deceptive, or misleading
representation or means to collect or attempt to collect claims or
10
to obtain information concerning consumers”) with 15 U.S.C.
§ 1692e(10) (prohibiting “any false representation or deceptive
means to collect or attempt to collect any debt or to obtain
information concerning a consumer”). Jones has not argued that
this D.C. law gives her any more protection than the federal act.
We therefore affirm the district court’s dismissal of Jones’s
claim under that law as well. The district court discussed the
Debt Collection Law only briefly, see Jones, 77 F. Supp. 3d at
137-38, likely because separate analysis of that law would have
been largely redundant. This was entirely proper; a “court is not
required to state findings or conclusions when ruling on a
motion under Rule 12.” FED. R. CIV. P. 52(a)(3).5
The district court properly resolved these questions as a
matter of law on a motion under Rule 12(c). See Jones, 77 F.
Supp. 3d at 137. We agree that no reasonable juror could find
the letter deceptive. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986); see also, e.g., Alexander v. City of
Chicago, 994 F.2d 333, 336 (7th Cir. 1993) (“[T]he standard
courts apply for summary judgment and for judgment on the
pleadings ‘appears to be identical.’”) (quoting 5A CHARLES A.
WRIGHT AND ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1368 at 530 (1990)). As the Fifth Circuit put it,
“There are some letters that, as a matter of law, are not
deceptive . . ..” Gonzalez, 577 F.3d at 606.
One extraneous matter remains. While their Rule 12(c)
motion was awaiting a ruling, the defendants filed a motion for
a protective order under Rule 26(c) to stop Jones from issuing
“unauthorized discovery requests.” A month later, the court
5
Because the district court properly found that Jones’s claims fail
on their merits, it also denied her motion for class certification as
moot. See Thomas v. Knight, No. 03-7041, 2003 WL 22239653, at *1
(D.C. Cir. Sept. 24, 2003).
11
denied this motion in a Minute Order. See Minute Order
denying Motion to Quash, No. 1:14-cv-00533-RJL (D.D.C.
Sept. 7, 2014). In response, Jones moved for attorneys fees
under Federal Rule of Civil Procedure 26(c)(3). This rule
incorporates Rule 37(a)(5) and states that if the court denies a
motion for a protective order, the court “must, after giving an
opportunity to be heard, require the movant . . . to pay” the
opposing party’s expenses and attorney’s fees. Rule 37(a)(5)
also states that “the court must not order this payment if the
motion was substantially justified or other circumstances make
an award of expenses unjust.” FED. R. CIV. P. 37(a)(5)(B).
District courts have “considerable discretion” to manage
discovery. United States v. Philip Morris Inc., 347 F.3d 951,
955 (D.C. Cir. 2003). In particular, courts “possess broad
discretion to impose sanctions for discovery violations under
Rule 37.” Parsi v. Daioleslam, 778 F.3d 116, 125 (D.C. Cir.
2015). In 1970, Rule 37 was amended and the section for
awarding attorney’s fees was rephrased in mandatory terms –
the court “must” grant attorney’s fees under certain conditions
and “must not” grant them under others. FED. R. CIV. P.
37(a)(5)(B). The conditions are fairly vague, particularly the
catch-all term that the court must not grant fees if doing so
would be “unjust.” Id. The advisory committee explained that
this amendment did “not significantly narrow the discretion of
the court” to award attorney’s fees for discovery violations.
FED. R. CIV. P. 37 advisory committee’s notes to 1970
amendments; see Marquis v. Chrysler Corp., 577 F.2d 624, 642
(9th Cir. 1978).
The district court did not explicitly deny the motion for
attorney’s fees. Its failure to award fees may be taken as a
denial of the motion. Rule 37(a)(5) states that under certain
circumstances, the court “must not order this payment,” and that
is what the court did. FED. R. CIV. P. 37(a)(5); see also FED. R.
12
CIV. P. 52(a)(3). The district court did not abuse its discretion
in coming to this decision. Jones’s counsel had asked for
$29,241 for sixty-five hours of work on this discovery issue.6
The court had discretion to find that this award would be
excessive and therefore “unjust.” In upholding the district
court’s refusal to grant Jones’s motion, we are mindful that Rule
26(c)(3) is meant to prevent needless litigation and wasteful
discovery disputes. Requiring still further proceedings in this
case would not be consistent with that objective.
Accordingly, we affirm the district court’s judgment.
So ordered.
6
Jones’s counsel initially asked for $22,761 for fifty-six hours of
work, but later increased that figure by nearly 30% for the additional
nine hours of work required to respond to Dufek’s opposition to
paying attorney’s fees. Compare Motion for Attorney Fees at 8, No.
1:14-cv-00533-RJL (D.D.C. Sept. 15, 2014), ECF No. 28; with Errata
Reply to Defendant’s Opposition to Motion for Attorney Fees at 7,
No. 1:14-cv-00533-RJL (D.D.C. Oct. 14, 2014), ECF No. 31.