Case: 12-20529 Document: 00512399603 Page: 1 Date Filed: 10/07/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 7, 2013
No. 12-20529 Lyle W. Cayce
Clerk
ROLANDO SERNA,
Plaintiff - Appellant
v.
LAW OFFICE OF JOSEPH ONWUTEAKA, P.C.; JOSEPH ONWUTEAKA;
SAMARA PORTFOLIO MANAGEMENT, L.L.C.,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before SMITH, HAYNES, and GRAVES, Circuit Judges.
HAYNES, Circuit Judge:
Rolando Serna appeals the district court’s grant of summary judgment for
the Law Office of Joseph Onwuteaka, P.C., Joseph Onwuteaka, and Samara
Portfolio Management, L.L.C. (collectively, “the Defendants”1), dismissing his
claim against the Defendants for violating the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et seq. The district court concluded that Serna’s
claim was untimely because he filed suit against Onwuteaka more than a year
after the underlying debt-collection suit was filed, which is outside the FDCPA’s
limitations period. Because we conclude that the alleged violation of 15 U.S.C.
1
Only Onwuteaka individually filed an appellee’s brief.
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§ 1692i(a)(2) arose only after Serna received notice of the underlying debt-
collection suit, we REVERSE and REMAND.
FACTUAL & PROCEDURAL HISTORY
Serna defaulted on a promissory note he obtained through the Internet
from First Bank of Delaware.2 Samara Portfolio Management purchased the
loan. Seeking to recover from Serna on the loan, Onwuteaka filed an original
petition in the Harris County Justice of the Peace Court on July 6, 2010, and
served Serna on August 14, 2010.3 Onwuteaka obtained a default judgment, on
which he attempted to collect.
On August 12, 2011, Serna filed an original complaint in the United States
District Court for the Southern District of Texas, alleging that because he
neither resided nor entered the loan agreement in Harris County, the
Defendants’ suit violated the FDCPA’s venue requirement. See § 1692i(a)(2).
He attached to it his application to proceed in forma pauperis (“IFP”), which the
district court denied on August 15, 2011. On August 18, 2011, Serna refiled his
complaint, which was identical to the original complaint he filed six days earlier,
this time paying the required fee. Thereafter, both parties moved for summary
judgment. The magistrate judge granted the Defendants’ motion, concluding
that Serna’s suit was untimely under the FDCPA’s one-year limitations period
because he filed his complaint more than one year after Onwuteaka filed his
2
Through this promissory note, Serna financed $2600 at an annual percentage rate
of 99.24%.
3
The lawsuit was filed by Onwuteaka and his law firm on behalf of Samara Portfolio
Management, which Onwuteaka owns.
2
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petition in the underlying debt-collection action.4 The magistrate judge entered
final judgment for the Defendants,5 and this appeal followed.
STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying the same
standard as the district court. Gen. Universal Sys. v. HAL, Inc., 500 F.3d 444,
448 (5th Cir. 2007). Summary judgment is appropriate if the moving party can
show “that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The evidence
must be viewed in the light most favorable to the non-moving party. United Fire
& Cas. Co. v. Hixson Bros., 453 F.3d 283, 285 (5th Cir. 2006).
DISCUSSION
Congress enacted the FDCPA “to eliminate abusive debt collection
practices by debt collectors, to insure that those debt collectors who refrain from
using abusive debt collection practices are not competitively disadvantaged, and
to promote consistent State action to protect consumers against debt collection
abuses.” § 1692(e). The statute provides that a debt collector seeking to recover
a consumer debt must “bring such action only in the judicial district or similar
legal entity . . . in which such consumer signed the contract sued upon[] or . . . in
which such consumer resides at the commencement of the action.”6 § 1692i(a)(2).
A violation of the FDCPA renders a debt collector potentially liable for actual
4
The magistrate judge also granted Serna’s motion for summary judgment concerning
the Defendants’ counterclaims, but denied the motion to the extent that Serna sought relief
for his affirmative claims. Because neither party contests this decision, we decline to review
the district court’s disposition of Serna’s motion for summary judgment. See Douglas W. ex
rel. Jason D.W. v. Hous. Indep. Sch. Dist., 158 F.3d 205, 210 n.4 (5th Cir. 1998) (“[F]ailure to
provide any legal or factual analysis of an issue on appeal waives that issue.”).
5
Pursuant to 28 U.S.C. § 636(c), the parties consented to a magistrate judge
conducting proceedings in this matter, including the entry of final judgment.
6
For purposes of this appeal, Onwuteaka does not dispute his status as a debt
collector.
3
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damages, additional damages up to $1,000, and costs and attorneys’ fees
incurred. 15 U.S.C. § 1692k(a). To enforce a violation of the FDCPA, an action
“may be brought in any appropriate United States district court without regard
to the amount in controversy, or in any other court of competent jurisdiction,
within one year from the date on which the violation occurs.” § 1692k(d)
(emphasis added).
Here, in order to determine whether Serna’s action was
“brought . . . within one year from the date on which the [alleged] violation [of
§ 1692i(a)(2)] occur[ed],” see § 1692k(d), we must interpret § 1692i(a)(2)’s
reference to “bring such action” to determine when the underlying debt-collection
suit was brought. The parties agree that Onwuteaka filed the debt-collection
suit against Serna on July 6, 2010, and served Serna on August 14, 2010. They
disagree concerning the legally relevant event that constitutes the violation that
encompasses the “bring[ing of] such action” under § 1692i(a)(2). Indeed,
reasonable minds could differ—as they do here—regarding the triggering event
for a violation to arise under § 1692i(a)(2). Compare Serna v. Law Office of
Joseph Onwuteaka, PC, No. H-11-CV-3034, 2012 WL 2360805, at *4 (S.D. Tex.
June 19, 2012) (holding that the violation occurs at the filing of a pleading), with
Langendorfer v. Kaufman, No. 1:10-CV-00797, 2011 WL 3682775, at *3 (S.D.
Ohio Aug. 23, 2011) (holding that the violation occurs at the time of service).
The Defendants maintain that the violation occurred on July 6, 2010—the day
Onwuteaka filed his original petition in the Harris County Justice of the Peace
Court, and, therefore, Serna’s suit is untimely under § 1692k(d)’s one-year
limitations period. Serna argues, however, that § 1692i(a)(2) is not violated until
the debt collector files a pleading and the alleged debtor is served. Therefore,
according to Serna, a violation of § 1692i(a)(2) did not occur until he received
notice of the suit, thus necessitating a response, when he was served on August
14, 2010.
4
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The magistrate judge adopted the Defendants’ approach, concluding that
“the statute of limitations under section 1692i(a)(2) begins to run upon the filing
of the lawsuit in the improper forum.” See Serna, 2012 WL 2360805, at *4. In
reaching this conclusion, the magistrate judge explained that “‘[o]nce the debt
collector sues in the wrong venue, the consumer must defend, and the damage
is done.’” Id. (alteration in original) (quoting Beeler–Lopez v. Dodeka, LLC, 711
F. Supp. 2d 679, 681 (E.D. Tex. 2010)). While the magistrate judge’s opinion is
not an unreasonable interpretation of this term, we conclude for purposes of
§ 1692k(d) that a violation of § 1692i(a)(2) does not occur until a debtor is
provided notice of the debt-collection suit.
I.
As with any statutory interpretation, we first turn to the text because
when a statute’s language is plain we must enforce it according to its terms.
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6
(2000); see also Schreiber v. Burlington N., Inc., 472 U.S. 1, 5 (1985).
Unfortunately, rather than use straightforward terms such as “file” or “file and
provide notice”—which would clearly establish when a violation for purposes of
§ 1692k(d) arises under § 1692i(a)(2)—Congress elected to use the ambiguous
phrase “bring such action.” Although Black’s Law Dictionary defines “bring an
action” as to “sue” or “institute legal proceedings,” the phrase “bring such action”
does not have a plain meaning synonymous with filing a pleading.7 See BLACK’S
7
The dissenting opinion attempts to establish that “bring such action” has a plain
meaning by relying primarily on definitions in Black’s Law Dictionary. The dissenting
opinion’s purported plain-language definition of “bring such action,” however, is not found
simply by referencing a dictionary for the ordinary meaning of that phrase or by relying on the
Federal Rules of Civil Procedure—neither source alone provides a precise definition of the
phrase. Instead, the dissenting opinion’s definition is derived through a four-part nesting of
definitions: (1) “bring an action” is defined as to “sue” or “institute legal proceedings,” (2) to
“sue” is to institute a lawsuit against another, (3) “institute” is to commence, and (4) pursuant
to Federal Rule of Civil Procedure 3, a civil action is commenced by filing a complaint with the
court. The complicated nature of this approach demonstrates that “bring such action” does
not have a plain meaning based on the text alone.
5
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LAW DICTIONARY 219 (9th ed. 2009). For example, in the context of another
statute, our sister circuit declined to hold that “bring an action” is synonymous
with “commencing a suit.” See Bowles v. Am. Stores, 139 F.2d 377, 378 (D.C. Cir.
1943). The court explained that while the phrase “bring an action” in other
contexts may mean “commencing a suit,” it does not follow that this phrase is
necessarily limited to initiating an action. Id. The court concluded that in the
context of the statute it was interpreting that a consumer’s right to “bring an
action” meant more than the right to merely commence an action. Id. at 378-79.
Instead, the phrase provided a consumer the right to potentially recover a
statutorily-provided monetary award from a merchant by prosecuting a suit to
judgment. Id. at 379. Bowles illustrates that “bring such action” does not
plainly mean “file a pleading.”
The ambiguity in this phrase is further illustrated by Texas’s treatment
of the term “bring.”8 In Texas, bringing suit is not synonymous with filing a
pleading. Instead, “[t]o ‘bring suit,’ a plaintiff must both file her action and have
the defendant served with process.”9 Boyattia v. Hinojosa, 18 S.W.3d 729, 733
(Tex. App.—Dallas 2000, pet. denied); see also Tarrant Cnty. v. Vandigriff, 71
S.W.3d 921, 924 (Tex. App.—Fort Worth 2002, pet. denied) (“The mere filing of
a lawsuit is not sufficient to meet the requirements of ‘bringing suit’ within the
8
Although Texas law carries no precedential value in the instant matter, we note
Texas’s separate treatment of the terms “bring” and “file” to underscore the ambiguity
inherent in the term “bring such action.”
9
By way of example, the Texas Commission on Human Rights Act provides that an
employee “may bring a civil action” against his or her employer within sixty days of receiving
notice of a right to file such action. TEX. LAB. CODE ANN. § 21.254 (West 2011). “Texas courts
have interpreted [this section] to mean that a plaintiff must file the suit and serve notice of
the suit upon the proper parties within 60 days of receiving . . . notice of a right to sue.”
McCollum v. Tex. Dep’t of Licensing & Regulation, 321 S.W.3d 58, 63 (Tex. App.—Houston [1st
Dist.] 2010, pet. denied).
6
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limitations period; rather, a plaintiff must both file her action and have the
defendant served with process.”).
Texas’s distinction between filing a pleading and bringing suit also runs
throughout the state’s statutes, including one analogous to the statute at bar.
For instance, several of Texas’s statutes of limitations employ the phrase “bring
suit,” see, e.g., TEX. CIV. PRAC. & REM. CODE ANN. §16.002 (West 2011), whereas
the Texas Deceptive Trade Practices Act (“DTPA”)—a statute with a similar
purpose to the FDCPA—employs the term “filing suit” when referring to a
violation for initiating a debt-collection action in the incorrect forum. TEX. BUS.
& COM. CODE ANN. § 17.46(b)(23) (West 2011) (providing that a violation occurs
based on “filing suit founded upon . . . extensions of credit . . . in any county
other than in the county in which the defendant resides at the time of the
commencement of the action or in the county in which the defendant in fact
signed the contract” (emphasis added)).10
Therefore, based on the inherent ambiguity of this phrase we cannot
conclude that “bring such action” has any plain meaning, much less that it is
necessarily synonymous with simply filling a pleading. As it is used in the
context of the FDCPA, this phrase could provide that a violation of § 1692i(a)(2)
occurs at the time of merely filing a debt-collection action in the improper venue,
but it could also mean that a violation occurs only after the debtor becomes
aware of the suit such that the debtor is harmed by having to respond in a
distant forum, thereby requiring filing and notice of the action. Because the
phrase “bring such action” does not by itself carry a plain meaning, we must
consider other sources to determine which approach best encapsulates
Congress’s intent. See Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 642 (1990)
10
The DTPA’s two-year limitations period is supplemented by a discovery rule so it
is not necessary to use a broader term than “file” in this statute. TEX. BUS. & COM. CODE ANN.
§ 17.565.
7
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(providing that “where the language is not dispositive . . . [we must turn to] the
history and purposes of the statutory scheme” to determine Congress’s intent);
Custom Rail Employer Welfare Trust Fund v. Geeslin, 491 F.3d 233, 236 (5th Cir.
2007) (“[W]hen the terms of a statute are ambiguous we are allowed to consider
other sources that may shed light on the meaning of those terms.”).
II.
Faced with two potential interpretations of the ambiguous phrase “bring
such action,” the FDCPA’s remedial nature compels the conclusion that a
violation includes both filing and notice. Through the FDCPA, Congress sought
to eliminate “abusive debt collection practices by debt collectors.” See § 1692(e).
Importantly, “Congress . . . has legislatively expressed a strong public policy
disfavoring dishonest, abusive, and unfair consumer debt collection practices,
and clearly intended the FDCPA to have a broad remedial scope.” Hamilton v.
United Healthcare of La., 310 F.3d 385, 392 (5th Cir. 2002) (emphasis added).11
Here, the remedial nature of this statute is best served for purposes of
§ 1692k(d) by tying a violation of § 1692i(a)(2) to notice necessitating action
because this approach: (1) most directly focuses on the harm Congress sought to
remedy through the FDCPA, and (2) best preserves the availability of relief for
consumers.
First, when a debt collector files suit against an alleged debtor in
contravention of § 1692i(a)(2), no harm immediately occurs because the debtor
likely has no knowledge of the suit and has no need to act. Therefore, tying a
11
See S. Rep. No. 95-382, at 4 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1698 (“In
addition to [the] specific prohibitions, this bill prohibits in general terms any harassing,
unfair, or deceptive collection practice. This will enable the courts, where appropriate, to
proscribe other improper conduct which is not specifically addressed.”); see also Brown v. Card
Serv. Ctr., 464 F.3d 450, 453 (3d Cir. 2006) (“Because the FDCPA is a remedial statute, we
construe its language broadly, so as to effect its purpose” (citation omitted)); Johnson v.
Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002) (“Because the FDCPA . . . is a remedial statute,
it should be construed liberally in favor of the consumer.”).
8
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violation to the mere filing of a complaint does not serve the statute’s remedial
purpose. Upon receiving notice, however, the harm is realized because the
debtor must then respond in a distant forum or risk default. Because the harm
of responding to a suit in a distant forum arises only after receiving notice of
that suit, a “violation” does not arise under § 1692i(a)(2) until such time as the
alleged debtor receives notice of the suit.
In adopting this approach, we are guided by the principle that a claim does
not accrue for purposes of a statute of limitations until a plaintiff experiences an
actual injury. See Frame v. City of Arlington, 657 F.3d 215, 238 (5th Cir. 2011)
(en banc), cert. denied, 132 S. Ct. 1561 (2012). When a defendant’s wrongful act
does not coincide with the plaintiff’s injury, the statute of limitations does not
begin to run until the plaintiff is harmed. Frame, 657 F.3d at 238 (explaining
that a plaintiff’s disability claim accrued not when the defendant built an
inaccessible sidewalk, but when the plaintiff became disabled and encountered
the harm of not being able to use the sidewalk); see also Piotrowski v. City of
Houston, 237 F.3d 567, 576 (5th Cir. 2001). Here, an alleged debtor does not
suffer any injury until he becomes aware of a debt-collection suit and is forced
to respond in a distant forum. Therefore, our holding that a debt collector does
not violate § 1692i(a)(2) until the debtor receives notice of the debt-collection suit
aligns with our well-settled precedent establishing that for purposes of a statute
of limitations a claim does not accrue until the plaintiff suffers actual injury.
Second, concluding that a violation of the “bring such action” provision
occurs solely upon the filing of a complaint creates a perverse incentive for
unscrupulous debt collectors to file debt-collection actions and purposefully delay
service, thereby depriving a debtor of the benefit of the FDCPA’s short, one-year
limitations period. See Johnson v. Riddle, 305 F.3d 1107, 1114 (10th Cir. 2002).
Such a result frustrates the purpose of the FDCPA because it forces alleged
debtors to scour court records in order to preserve their rights. The burden of
9
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this obligation is especially apparent here: Serna had no reason to believe that
while living in Bexar County he would be sued in Harris County on a $2600
promissory note that he signed over the Internet. Conversely, concluding that
a violation does not occur with respect to § 1692i(a)(2) until, at the earliest, some
form of notice has been provided ensures that a consumer has adequate
opportunity to seek relief under the FDCPA.
Therefore, to the extent that there are two reasonable interpretations of
when a violation of the “bring such action” language occurs, the remedial nature
of the FDCPA and the importance of protecting consumers by allowing them to
sue under § 1692k(d) compel us to conclude that a violation of § 1692i(a)(2) is not
complete until the alleged debtor becomes aware of the debt-collection suit.12
III.
Our conclusion that for purposes of § 1692k(d) a violation of § 1692i(a)(2)
does not occur until an alleged debtor receives notice of the debt-collection suit
is buttressed by an examination of the context in which § 1692i(a)(2) was
adopted. See Elam v. Kans. City S. Ry. Co., 635 F.3d 796, 810 (5th Cir. 2011)
(“[W]hen the text of a statute is susceptible of more than one reasonable
meaning, we may look to legislative history to discern legislative intent.”). The
origins of § 1692i(a)(2) can be traced to the Federal Trade Commission’s (“FTC”)
fair-venue standards, which “provide[] that if a creditor sues a consumer for a
delinquent account, the creditor may sue the consumer only in the judicial
district in which the consumer resides at the beginning of the action or signed
the contract sued upon.” In re J.C.Penney Co., No. 852-3029, 1986 WL 722090,
12
Importantly, we need not and do not decide whether a discovery rule applies to
§ 1692k(d)’s one-year limitations period. Our conclusion that a violation under § 1692i(a)(2)
arises only after the alleged debtor receives notice of the underlying debt-collection suit has
no bearing on whether a discovery rule could toll § 1692k(d)’s one-year limitation for filing suit
after a violation arises.
10
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at *4 (F.T.C. July 17, 1986).13 The FTC adopted these standards after observing
that “[k]nowingly filing actions in distant counties in order to gain an
unconscionable advantage [was] not a unique or isolated practice, but instead
ha[d] been continuously identified . . . as a widespread and common abuse in the
debt collection field.” In re Spiegel, 1975 WL 173254, at *6.
Following the FTC’s implementation of the fair-venue standards, Congress
observed the importance of “address[ing] the problem of ‘forum abuse,’ an unfair
practice in which debt collectors file suit against consumers in courts which are
so distant or inconvenient that consumers are unable to appear.” S. Rep. No.
95-382, at 5, reprinted in 1977 U.S.C.C.A.N. 1695, 1699. To remedy this problem
and prevent debt collectors from unfairly pursuing debt-collection actions
against consumers in distant forums with the goal of receiving default
judgments, Congress “adopt[ed] the ‘fair venue standards’ developed by the
[FTC].” Id.
This background guides our analysis in two significant respects. First, in
light of the earlier use of the terms “file” and “institute” in the Senate Report
and FTC opinions, Congress’s use of the phrase “bring such action” in
§ 1692i(a)(2) strongly suggests that Congress did not intend for this phrase
simply to be equated with filing a pleading. Had Congress intended for a
violation to have occurred merely by filing, it would have used the phrase “file
such action”; instead, Congress declined to use the word “file” and selected
instead to use the broader term “bring.” Congress’s decision to use the word
“bring” rather than “file” demonstrates its intent that “bring such action”
13
See also Dutton v. Wolhar, 809 F. Supp. 1130, 1139 (D. Del. 1992) (explaining that
the fair-venue standards “permit a debt collector to sue . . . on a debt only in the county in
which the alleged debtor resides or signed the contract upon which the suit is premised.”
(emphasis removed)); In re Spiegel, Inc., No. 8990, 1975 WL 173254, at *8 (F.T.C. Aug. 18,
1975) (explaining that the fair-venue standards “prohibit[] the institution of suits against a
defendant other than where [the] defendant resides or where the contract sued upon was
signed”), enforced as modified, Spiegel Inc. v. FTC, 540 F.2d 287 (7th Cir. 1976).
11
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requires more than simply filing a pleading.14 See I.N.S. v. Cardoza-Fonseca,
480 U.S. 421, 433 n.12 (1987) (noting that there is a “strong presumption that
Congress expresses its intent through the language it chooses”).
Second, the fair-venue standards on which Congress relied did not seek to
cure the harm of filing a suit per se, but rather addressed the hardship
experienced by a debtor forced to respond to the suit in a distant forum.15 Filing
a pleading alone does not give rise to this hardship. Instead, it is upon receiving
notice of a debt-collection suit that the alleged debtor experiences the harm the
fair-venue standards sought to remedy because it is then that he must respond
to the suit. Thus, the circumstances surrounding the FDCPA’s adoption further
compel us to conclude that for purposes of § 1692k(d) no violation of § 1692i(a)(2)
occurs until the debtor is given notice of the debt-collection action.
IV.
Today’s holding aligns with the Tenth Circuit’s decision in Riddle
involving a suit brought pursuant to § 1692k(d) for a violation of 15 U.S.C.
§ 1692f(1) of the FDCPA, a separate section from that at issue here. See 305
F.3d at 1111. The court in Riddle rejected the “argument that the violation
[based on an underlying debt-collection suit] occurred upon filing rather than
upon service.” Id. at 1113. Observing that “the fact that a party that has
14
As the dissenting opinion points out, the Senate Report also states that “[w]hen an
action is against real property, it must be brought where such property is located.” See S. Rep.
No. 95-382, at 5, reprinted in 1977 U.S.C.C.A.N. 1695, 1699 (emphasis added). This use of the
term “brought” does not somehow undercut the significance of Congress’s decision to also use
the term “bring” in § 1692i(a)(2).
15
See, e.g., In re Speigel, 1975 WL 173254, at *15 (explaining that the opportunity to
defend “is totally foreclosed by [the debt collector’s] use of [a distant] forum, which forces the
consumer who wishes to defend to appear in a courtroom hundreds or thousands of miles from
home, at a cost in travel alone which may exceed the amount in controversy”); In re
Montgomery Ward, No. C-2602, 1974 WL 175300, at *1-3 (F.T.C. Nov. 19, 1974) (explaining
that the harm committed by the retailer was that its pursuit of a debt-collection action in a
distant forum “effectively deprive[d] many defendants of a reasonable opportunity to appear,
answer and defend”).
12
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committed half an actionable wrong [and] is likely to commit the other half
cannot suffice to create a complete and present cause of action,” id. at 1114, the
court concluded that “where the plaintiff’s FDCPA claim arises from the
instigation of a debt collection suit, the plaintiff does not have a complete and
present cause of action . . . and thus no violation occurs within the meaning of
§ 1692k(d), until the plaintiff has been served.” Id. at 1113 (internal quotation
marks omitted); cf. Mattson v. U.S. W. Commc’ns, Inc., 967 F.2d 259, 261 (8th
Cir. 1992) (noting that an FDCPA violation based on a collection letter occurs at
the time of mailing, rather than the time of receipt, because the debt collector’s
“last opportunity to comply with the FDCPA” passed when it mailed the
collection letters). Although Riddle addressed § 1692f(1)—a section of the
FDCPA that involves violations based on inappropriate debt-collection suits, but
does not use the phrase “bring such action”—its reasoning applies generally to
claims under the FDCPA for violations arising from the institution of debt-
collection suits. See Riddle, 305 F.3d at 1113. As a result, Riddle’s conclusion
that a violation of the FDCPA does not occur based on a wrongful debt-collection
suit until the alleged debtor is served strongly supports our conclusion that for
purposes of § 1692k(d), a violation under § 1692i(a)(2) does not arise until the
alleged debtor receives notice.16
16
The Ninth Circuit has also considered when the FDCPA’s one-year limitations
period begins to run with regard to a debt-collection suit, but its analysis arises in a context
that differs significantly from the present case. See Naas v. Stolman, 130 F.3d 892 (9th Cir.
1997). The Naas court did not evaluate the effect of service on a debtor, but instead focused
on whether the limitations period began to run only after a state court of appeals upheld the
judgment in the underlying debt-collection suit. Id. at 892-93. While the Ninth Circuit noted
that the one-year limitation “beg[i]n[s] to run on the filing of the complaint,” the date of service
was irrelevant to its narrow holding that an appellate court’s affirmation of an underlying
debt-collection judgment did not trigger the limitations period. Id. at 893.
Notably, the court relied on the Eighth Circuit’s test in Mattson, which determines
when a cause of action accrues under the FDCPA based on both the debt collector’s “last
opportunity to comply with the FDCPA” and a point “fixed by objective and visible standards,
one which is easy to determine, ascertainable by both parties, and may be easily applied.”
Mattson, 967 F.2d at 261 (internal quotation marks omitted); see also Naas, 130 F.3d at 893
13
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V.
Concluding that for purposes of § 1692k(d) a violation of § 1692i(a)(2) could
not have occurred until Serna became aware of Onwuteaka’s debt-collection suit
when he was served,17 we now consider whether Serna’s suit was timely. The
FDCPA’s limitations period provides that Serna’s FDCPA action “may be
brought . . . within one year from the date on which [Onwuteaka’s alleged
violation of § 1692i(a)(2)] occur[ed].” See § 1692k(d). Because the date of the
violation itself is not included in calculating the limitations period, Onwuteaka
argues that (assuming August 14 was the trigger date) Serna would have been
required to file his complaint by August 14, 2011; however, because that date
was a Sunday, his limitations period expired on August 15, 2011. See FED. R.
CIV. P. 6(a)(1)(A), (C). Serna filed his original complaint and IFP application on
August 12, 2011, but the district court denied his IFP application on August 15,
2011, within the limitations period alternatively argued by Onwuteaka. The
court provided notice to Serna of its denial of the IFP application by mail and
electronic means, thereby entitling him to three days to file his complaint and
filing fee. See FED. R. CIV. P. 6(d) (“When a party may . . . act within a specified
time after service . . . 3 days are added after the period would otherwise expire
under Rule 6(a).”); see also Jarrett v. US Sprint Commc’ns Co., 22 F.3d 256, 259
(10th Cir. 1994) (providing three additional days under Rule 6(d) to file suit and
(discussing the Mattson test). When applied in a context where service is relevant, the
Mattson test suggests that a violation of § 1692i(a)(2) does not arise until the debtor is served
because service is both the debt collector’s last opportunity to comply with the FDCPA and
occurs on a date that is easily ascertainable by the parties. While the filing of suit represents
an opportunity to comply with the FDCPA, it is not the debt collector’s last opportunity before
the alleged debtor becomes aware of and suffers the injury of having to respond to the debt
collector’s violation of the FDCPA. Accordingly, our approach here does not conflict with the
Ninth Circuit’s holding in Naas, which did not address the effect of service on the debtor.
17
The parties do not contest that Serna became aware of Onwuteaka’s suit through
service. As a result, we need not decide whether in the absence of service, other means of
notice would establish a violation under § 1692i(a)(2).
14
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No. 12-20529
pay the filing fee following the denial of an IFP petition); Castleberry v.
CitiFinancial Mortg. Co., 230 F. App’x 352, 356-57 (5th Cir. 2007) (unpublished)
(explaining that Rule 6(d) may extend the period for action after receiving notice
of a court’s order when an action must be taken by a certain time after service).
In other words, Serna could have acted by refiling and paying his filing fee the
same day his IFP application was denied because his time to act under
§ 1692k(d)’s one-year limitation continued through August 15, 2011. Because
Rule 6(d) provided Serna three additional days, his filing on August 18, 2011,
was timely.18 Accordingly, we conclude that Onwuteaka’s argument that Serna’s
suit was untimely based on § 1692k(d)’s one-year limitations period as he
calculates it fails.
The dissenting opinion argues that we should apply our analysis of
§ 1692i(a)(2) to the word “brought” in § 1692k(d) such that Serna would be
required to have given notice of suit by this date. Onwuteaka did not make this
argument to the district court or this court, and we decline to reach an argument
not raised by any party. See United States v. Bigler, 817 F.2d 1139, 1140 (5th
Cir. 1987) (“This court has repeatedly ruled that it will not consider issues that
were not raised before the trial court, and, a fortiori, that it will not consider
issues that are not raised by the litigants on appeal except when they undermine
18
Because we conclude that Serna’s suit was timely filed, we need not reach the issue
of whether the FDCPA’s limitations period is tolled during the pendency of an unsuccessful
IFP application. This consideration—as well as any consideration of whether a discovery rule
applies to § 1692k(d)—would require us to determine whether the FDCPA’s one-year
limitations period functions as a jurisdictional bar or a statute of limitations. See Archer v.
Nissan Motor Acceptance Corp., 550 F.3d 506, 508 (5th Cir. 2008); cf. Davis v. Johnson, 158
F.3d 806, 810 (5th Cir. 1998) (“If the one-year filing period [in a statute] is a limitation on the
jurisdiction of federal courts, then federal courts lack the power to extend the period to allow
for late adjudication of claims. . . . [I]f the [one-year filing] period is a statute of limitations,
courts can, in extraordinary circumstances, allow late claims to proceed[.]”). While some
courts have concluded that the FDCPA’s limitations period is not jurisdictional, see, e.g.,
Mangum v. Action Collection Serv., 575 F.3d 935, 939-40 (9th Cir. 2009), we decline to reach
this issue.
15
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the court’s jurisdiction.”). We have no occasion to opine on the meaning of
§ 1692k(d)’s use of the term “brought” under the arguments raised by the
parties.19
CONCLUSION
The FDCPA provides that a debtor may bring an action “within one year
from the date on which the violation occurs.” § 1692k(d). We conclude that a
violation of § 1692i(a)(2) does not occur until the debt-collection suit is filed and
the alleged debtor is notified of the suit.20 Therefore, Serna’s action was timely.
REVERSED and REMANDED.
19
Moreover, while there is a presumption that identical terms within the same statute
will be interpreted similarly, the Supreme Court has “declined to require uniformity when
resolving ambiguities in identical statutory terms.” Envtl. Def. v. Duke Energy Corp., 549 U.S.
561, 575 (2007). As a result, even if we were to interpret § 1692k(d)’s use of the term
“brought,” we may not necessarily adopt an identical meaning to “bring such action” because
“[t]here is . . . no effectively irrebuttable presumption that the same defined term in different
provisions of the same statute must be interpreted identically. Context counts.” See id. at
575-76 (internal citation and quotation marks omitted) (explaining that the “natural
presumption that identical words used in different parts of the same act are intended to have
the same meaning . . . is not rigid and readily yields whenever there is such variation in the
connection in which the words are used as reasonably to warrant the conclusion that they were
employed in different parts of the act with different intent. A given term in the same statute
may take on distinct characters from association with distinct statutory objects calling for
different implementation strategies.” (alteration in original) (emphasis added) (internal
citation and quotation marks omitted)).
20
Because our interpretation of § 1692i(a)(2)’s ambiguous reference to “bring such
action” is intimately tied to Congress’s intent in adopting the FDCPA and the purpose for
which this statute was adopted, our holding does not necessarily extend to the interpretation
of this phrase as it is used in other statutes.
16
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No. 12-20529
JERRY E. SMITH, Circuit Judge, dissenting:
In the majority’s view, to “bring such action,” 15 U.S.C. § 1692i(a)(2),
refers to something different from “[a]n action . . . may be brought,” id.
§ 1692k(d). At first blush, that notion is counterintuitive; on careful examina-
tion, it is demonstrable error: Those nearly identical phrases are found in the
same act and should be given the same meaning. I respectfully dissent.
I.
A.
To interpret “bring such action,” we ought to begin, “[a]s in any statutory
construction case[,] . . . with the statutory text, and proceed from the under-
standing that [u]nless otherwise defined, statutory terms are generally inter-
preted in accordance with their ordinary meaning.”1 “It is well established that
when the statute’s language is plain, the sole function of the courts—at least
where the disposition required by the text is not absurd—is to enforce it accord-
ing to its terms.” Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (quotation marks
and citation omitted). “[T]he meaning of statutory language, plain or not,
depends on context.” King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991).
The dictionary defines to “bring an action” as to “sue” or “institute legal
proceedings.” BLACK’S LAW DICTIONARY 219 (9th ed. 2009). To “sue” is “[t]o insti-
tute a lawsuit against (another party),” id. at 1570, and to “institute” is, in turn
“[t]o begin or start; commence,” id. at 868. Thus, “[a] suit is brought when in law
it is commenced, . . . the two words evidently mean the same thing, and are used
1
Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013) (quotation marks and citation omitted;
second alteration in original); accord Ford Motor Credit Co. v. Dale (In re Dale), 582 F.3d 568,
573 (5th Cir. 2009) (Haynes, J.) (observing that we begin with “the plain language of the stat-
ute,” then consult the “ordinary or generally understood meaning”).
17
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interchangeably.” Goldenberg v. Murphy, 108 U.S. 162, 163 (1883).
In the context of federal law, a suit is brought or commenced when it is
filed. Under the Federal Rules of Civil Procedure, for example, “[a] civil action
is commenced by filing a complaint with the court.” FED. R. CIV. P. 3.2 Because
of Rule 3, “[i]n a suit on a right created by federal law, filing a complaint suffices
to satisfy the statute of limitations.” Henderson v. United States, 517 U.S. 654,
657 n.2 (1996).
When a “cause of action is based on federal law and the absence of an
express federal statute of limitations makes it necessary to borrow a limitations
period from another statute, the action is not barred if it has been ‘commenced’
in compliance with Rule 3 within the borrowed period.” West v. Conrail, 481
U.S. 35, 39 (1987). That is so even where the statute from which the limitations
period was borrowed requires service within the limitations period. Id. at 38. Not
surprisingly, many federal statutes use “file” and “bring” interchangeably,3
distinguish bringing suit from serving process,4 or both.5
2
The original Advisory Committee debated whether a suit should be commenced by fil-
ing or, instead, filing plus something else; “[a]t one time a majority of the Committee favored
the so-called ‘hip-pocket’ method of commencing an action, and the proposed text of what is
now Rule 3 provided that an action would be commenced by the service of process.” 4 CHAR-
LES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1051, at 209 (3d ed.
2002). Others proposed that an action would commence upon filing, “but with a further provi-
sion that the action should abate unless service was made within sixty days.” Id. The commit-
tee settled on the current language, id., which has not been amended except for stylistic
purposes.
3
See, e.g., 12 U.S.C. § 4617(5) (“(A) In general[,] [i]f the Agency is appointed conservator
or receiver under this section, the regulated entity may, within 30 days of such appointment,
bring an action in the United States district court . . . . (B) Upon the filing of an action under
subparagraph (A) . . . .”) (emphasis added); 21 U.S.C. § 355(D)(i) (“Filing of civil action[:] . . .
[T]he applicant referred to in such subclause may . . . bring a civil action . . . .”) (emphasis
added).
4
See, e.g., 7 U.S.C. § 25(c) (“Any such action shall be brought not later than two years
after the date the cause of action arises. . . . Process in such action may be served in any judi-
cial district . . . .”); 15 U.S.C. § 5712(c) (“Any civil action brought under this section . . . may
(continued...)
18
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B.
The panel majority has no difficulty interpreting “[a]n action . . . may be
brought,” § 1692k(d), according to its ordinary meaning under federal law. The
majority correctly notes that Serna “filed” his complaint on August 12, 2011,
then “refiled” it on August 18. Considering whether Serna’s suit was timely, the
majority uses “bring suit” and “file suit” interchangeably:
The FDCPA’s limitations period provides that Serna’s FDCPA
action “may be brought . . . within one year from the date on which
[Onwuteaka’s alleged violation of § 1692i(a)(2)] occur[red]. See
§ 1692k(d). Because the date of the violation itself is not included
in calculating the limitations period, Onwuteaka argues that
(assuming August 14 was the trigger date) Serna would have been
required to file his complaint by August 14, 2011; however, because
that date was a Sunday, his limitations period expired on August
15, 2011. See FED. R. CIV. P. 6(a)(1)(A), (C). Serna filed his original
complaint and IFP application on August 12, 2011 . . . . Because
Rule 6(d) provided Serna three additional days, his filing on
August 18, 2011, was timely.
(Emphasis added, first ellipses in original.)
“Absent some congressional indication to the contrary, we decline to give
the same term in the same Act a different meaning depending on whether the
rights of the plaintiff or the defendant are at issue.” Desert Palace, Inc. v. Costa,
539 U.S. 90, 101 (2003). Indeed, “[t]he normal rule of statutory construction
assumes that identical words used in different parts of the same act are intended
to have the same meaning.” Sorenson v. Sec’y of Treasury, 475 U.S. 851, 860
4
(...continued)
be brought in the district wherein the defendant is found . . . and process in such cases may
be served in any district . . . .”) (emphasis added).
5
See 18 U.S.C. § 1956(b)(2) (“For purposes of adjudicating an action filed . . . the dis-
trict courts shall have jurisdiction over any foreign person . . . against whom the action is
brought, if service of process upon the foreign person is made . . . .”).
19
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(1986) (quotation marks and citations omitted). Nothing in the text or context
of the FDCPA indicates that to “bring an action” should be interpreted one way
in § 1692k(d) and another way in § 1692i(a)(2).
By any reasonable reading of the rules of statutory construction, the terms
should be given the same meaning. Because Serna sued more than a year after
Onwuteaka did, Serna’s action was untimely.
II.
Rather than confront the text of the statute directly, the majority relies on
canons of construction and legislative history. But “Fifth Circuit law is crystal
clear that when, as here, the language of a statute is unambiguous, this [c]ourt
has no need to and will not defer to extrinsic aids or legislative history.” Guilzon
v. Comm’r, 985 F.2d 819, 823 (5th Cir. 1993); accord Hamilton v. United Health-
care of La., Inc., 310 F.3d 385, 392 (5th Cir. 2002). “Because the plain language
of the statute is unambiguous, we need not examine the legislative history.” Con-
way v. United States, 647 F.3d 228, 236 (5th Cir. 2011) (Haynes, J.) “Bring such
action” could be ambiguous in some other context—in some jurisdictions an
action is “brought” when filed and in others is “brought” when process is served.6
But “[a]mbiguity is a creature not of definitional possibilities but of statutory
context.” Brown v. Gardner, 513 U.S. 115, 118 (1994). In the broader context
of federal law, and in the narrower context of the FDCPA, “bring such action” is
not ambiguous.
Instead of identifying an ambiguity in the text or context of the statute,
the majority relies on our sister circuit’s construction of a different phrase—
6
Compare, e.g., LA. CODE CIV. PROC. ANN. art. 421 (“A civil action is a demand for the
enforcement of a legal right. It is commenced by the filing of a pleading presenting the
demand to a court of competent jurisdiction.”), with, e.g., MINN. R. CIV. P. 3.01(a) (“A civil
action is commenced against each defendant: (a) when the summons is served upon that
defendant.”).
20
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No. 12-20529
“attempt to collect”7 —from a separate section of the statute, 15 U.S.C. § 1692f.8
Regardless of the remedial nature of the statute, however,9 the majority has not
shown ambiguity and cannot show absurdity.10
7
Johnson v. Riddle, 305 F.3d 1107, 1114 (10th Cir. 2002).
8
Even if Johnson v. Riddle were on point, its reasoning does not, in the majority’s
words, “strongly support[]” its holding. The Johnson v. Riddle court, 305 F.3d at 1113, held
that “the plaintiff does not have a complete and present cause of action, and thus no violation
occurs within the meaning of § 1692k(d), until the plaintiff has been served.” “[T]he fact that
a party that has committed half an actionable wrong,” filing suit, “is likely to commit the other
half,” serving process, “cannot suffice to create a complete and present cause of action.” Id.
at 1114. But nothing in the text of § 1692i(a) divides “bring such action” into two halves of an
actionable wrong. Claiming, as the majority does in following Johnson v. Riddle, that the
plaintiff does not have a complete and present cause of action until notified begs the question
whether the relevant violation is filing or filing plus something more.
As did the Johnson v. Riddle court, id. at 1114 n.4, the majority pretends that its
approach does not conflict with Naas v. Stolman, 130 F.3d 892, 893 (9th Cir. 1997). Because
no federal court of appeals had answered “at which point the statute of limitations begins to
run when the alleged violation of the Act is the filing of a lawsuit,” the Ninth Circuit consid-
ered two district court opinions. Id. In one, “the court held that the violation occurred and the
statute of limitations started to run on either the day the complaint was filed or the day it was
served, but deciding between the two alternatives was unnecessary in that case.” Id. (citing
Prade v. Jackson & Kelly, 941 F. Supp. 596, 600 (N.D. W. Va. 1996)) (emphasis added). In the
other, the court was “more precise, holding that the statute of limitations began to run from
the day garnishment proceedings were initiated.” Id. (citing Blakemore v. Pekay, 895 F. Supp.
972, 982–83 (N.D. Ill. 1995)) (emphasis added).
The Ninth Circuit thus considered the possibility that limitations began to run on ser-
vice, but it stated its holding in precise terms: Where “the alleged violation of the Act was . . .
the bringing of the suit itself . . . the statute of limitations began to run on the filing of the
complaint.” Id. Because the Ninth Circuit was not construing § 1692i(a), the majority techni-
cally may not be creating a circuit split, but there is a conflict between the two approaches.
The majority’s invocation of Mattson v. U.S. West Communications, Inc., 967 F.2d 259,
261 (8th Cir. 1992), is a red herring. However useful the Eighth Circuit’s test might be in
determining when, exactly, a debt collector violated the ambiguous provisions of § 1692e or
§ 1692f, it is irrelevant to the question of when a debt collector brought an action in a distant
forum.
9
Hamilton, 310 F.3d at 392.
10
That unscrupulous debt collectors might cut into the statute of limitations by delay-
ing service might justify applying a discovery rule or equitable tolling but not a finding of
(continued...)
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“In the absence of ambiguity, our inquiry ends with the text itself. . . .
[A]bsent any indication that doing so would frustrate Congress’s clear intention
or yield patent absurdity, our obligation is to apply the statute as Congress
wrote it.” Hamilton, 310 F.3d at 391–92 (citation omitted; alteration in original).
The plain meaning of the statuteSSas written and not as annotated by the panel
majoritySSshould be invoked to render Serna’s suit untimely.
III.
Spelunking unnecessarily in the depths of legislative history, the majority
loses its way.11 It acknowledges that the FTC consistently faulted debt collectors
for “filing” or “instituting” suits in distant fora and that § 1692i(a)(2) “addresses
the problem of ‘forum abuse,’ an unfair practice in which debt collectors file suit
against consumers in courts which are so distant or inconvenient that consumers
are unable to appear,” S. Rep. No. 95-382, at 5, reprinted in 1977 U.S.C.C.A.N.
1695, 1699 (emphasis added). As described in that Senate Report, the bill
adopted “the ‘fair venue standards’ developed by the [FTC]. A debt collector who
files suit must do so either where the consumer resides or where the underlying
contract was signed. When an action is against real property, it must be brought
where such property is located.” Id. (emphasis added).
There is no great mystery here; taken at face value, the legislative history
indicates that Congress intended to codify the FTC’s rule against filing suit in
a distant forum, so it prohibited bringing suit in a distant forum—a synonymous
10
(...continued)
absurdity.
11
The majority’s approach to statutory interpretation is odd to say the least. Usually,
“[t]he starting point in discerning congressional intent is the existing statutory text and not
the predecessor statutes.” Lamie, 540 U.S. at 534. Without demonstrating an ambiguity in
the text of the statuteSSa prerequisite for considering legislative historySSthe majority
attempts to create a mystery by comparing the statutory text not even with a predecessor stat-
ute, but with the legislative history.
22
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No. 12-20529
term under federal law. Contra the majority, “bring” is not a broader term than
“file” under federal law; the very Senate Report on which the majority relies uses
them interchangeably.
Even if there were some uncertainty as to why Congress used “bring such
action” instead of “file such action,” it is easily explained. Perhaps Congress
wanted to use the same term for the same thing in different sections of the same
Act. Compare 15 U.S.C. § 1692i(a)(2), with 15 U.S.C. § 1692k(d). Or maybe Con-
gress wanted to use a standard phrase found throughout the United States
Code.12 In any event, the legislative history of the FDCPA supports the plain
meaning of § 1692i(a)(2); Serna’s suit was untimely.13
Because the majority distinguishes that which Congress has made the
same, I respectfully dissent.
12
See, e.g., 15 U.S.C. § 2619 (“Any civil action . . . shall be brought . . . action brought
. . . shall be brought . . . suits brought . . . action brought . . . action brought . . . actions brought
. . . action is brought.”); see also supra notes 3–5. Interpreting these other statutes, must we
see whether the legislative history used “file” before we conclude that “bring” and “file” are
synonyms?
13
Finally, I am baffled by the majority’s digression into Texas law. We do not usually
interpret the terms of federal statutes by seeing how they are used in one particular state’s
laws. If the point is that Texas distinguishes between filing a pleading and bringing suit, what
relevance does that distinction have here? The terms are interchangeable under federal law,
as the majority implicitly acknowledges when interpreting and applying § 1692k(d).
23