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Rotkiske v. Klemm

United States Court of Appeals, Third Circuit

May 15, 2018

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

          Argued January 18, 2017

          En Banc Rehearing Ordered September 7, 2017

          Reargued En Banc February 21, 2018

          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

          Matthew B. Weisberg [Argued] Adina H. Rosenbaum, Esq. [Argued] Public Citizen Litigation Group Counsel for Plaintiff-Appellant

          Carl E. Zapffe [Argued] Fenton & McGarvey Law Firm Counsel for Defendants-Appellees

          Before: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE, SHWARTZ, KRAUSE, RESTREPO, BIBAS, and FISHER [*] , Circuit Judges

          OPINION

          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. § 1692 et 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 Fed.Appx. 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, 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 September 7, 2017, the Court sua sponte ...


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