KEVIN C. ROTKISKE, Appellant
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
January 18, 2017
Banc Rehearing Ordered September 7, 2017
Reargued En Banc February 21, 2018
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
E. Zapffe [Argued] Fenton & McGarvey Law Firm Counsel for
Before: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN,
HARDIMAN, GREENAWAY, JR., VANASKIE, SHWARTZ, KRAUSE,
RESTREPO, BIBAS, and FISHER [*] , Circuit Judges
HARDIMAN, CIRCUIT JUDGE.
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).
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.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
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
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 ...