Summary
assuming equitable tolling available
Summary of this case from Mooneyham v. GLA Collection Co.Opinion
Case No. 1:07-cv-856.
July 9, 2008
Castleberry's six-count amended complaint asserts two claims arising under federal statute: count one claims that Neuman violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1691 et seq., and count four claims that Neuman violated the Fair Credit Reporting Act, 15 U.S.C. § 1681. The amended complaint also asserts four claims arising solely under Michigan law: count two for violation of the Michigan Consumers Protection Act, M.C.L. § 445.903 et seq.; count three for violation of the Michigan Collection Practices Act, M.C.L. § 339.901 et seq.; count five for common-law defamation; and count six for common-law "injurious falsehood." Pending is the defendants' motion for judgment [Docket #49]on the pleadings, to which no timely response was filed. For the reasons that follow, the court will grant judgment to the defendants on the two well-pled federal claims and decline supplemental jurisdiction over the four state-law claims.
Background
In December 1998, Martin H. Neuman, Esq. ("Neuman"), an attorney also then employed as a debt collector ("collector") with the firm Neuman Canjar, filed suit against Dominic Castleberry ("Castleberry") in Michigan state court on behalf of creditor H S Financial, Inc. ("H S"). Am. Comp. ¶ 10. In April 1999, Neuman obtained a default judgment for H S in the amount of $2,582.84 (plus post-judgment interest at the then-prevailing statutory rate of 13%) against Castleberry.To collect on that judgment, Neuman secured writs of garnishment. Neuman then mailed wage-garnishment notices to two of Castleberry's former employers, Landstar Gemini (in June 1999), and six years later, to Morgan Southern, Inc. (in June 2005). Am. Comp. ¶¶ 41, 45-46, and 51-52; see also Ex. H (Default Judgment) and Exs. I J (writs of garnishment).
In November 2006, Castleberry filed a motion in the 5th District Court of Berrien County, Michigan, seeking to set aside the default judgment entered against him over seven years earlier. Am. Comp. ¶ 69 and Ex. K (Castleberry's motion to set aside default judgment). Four days later, Judge Tolen orally granted Castleberry's motion, set aside the default judgment, and quashed the writs of garnishment. Am. Comp. ¶ 70. Judge Tolen deferred ruling, however, on whether Castleberry could recover amounts paid under the improper garnishments, and on whether Neuman's client (H S)'s claim against Castleberry for the alleged debt was time-barred. Neither of those issues is directly implicated in the instant controversy, but it is useful to review some specifics of the state-court proceedings.
On January 3, 2007, Judge Tolen issued her final opinion in H S Financial v. Castleberry, writing, in pertinent part,
This Court held a hearing on Defendant [Castleberry]'s Motion [to set aside the 1999 default judgment and wage garnishments] on December 11, 2006. The Court found that Defendant presented sufficient evidence to establish that he was never actually served, personally or otherwise, and had no reason to know of the lawsuit against him.
The Court also found that, as Plaintiff had not presented evidence of an assignment of the promissory note, the suit was not properly filed by a bonded debt collector as required by state and federal law. The Court noted that Plaintiff had ample opportunity to submit evidence of such an assignment, both in the Complaint and at the hearing, and had failed to do so by either documentary or testamentary evidence.
For these reasons, the Court found that the Judgment was void pursuant to MCR 2.612(C)(1)(d) and (f). The Court took the statute of limitations and garnishment issues under advisement.
* * *
The first question presented, then, is: When a default judgment is declared void, does the statute of limitations continue to run on the underlying cause of action or is it tolled by the filing of the lawsuit such that the plaintiff [H S] is permitted to proceed to the merits of the case [to recover the alleged debt from Castleberry] once the default judgment is set aside?
* * *
Since the statute of limitations on Plaintiff [H S]'s claim effectively expired on June 9, 2003, and Plaintiff cannot timely file another complaint under Michigan law, this dismissal is with prejudice.
* * *
The next issue the Court must resolve is whether, When a default judgment is declared void, wage garnishments collected pursuant to that judgment are also void? If so, is defendant [Castleberry] entitled to relief from the garnishments?
* * *
Based on the language of governing statutes and "ancient" case law, it appears that this Court is still without legislatively-granted authority to award restitution of improperly-garnished wages to Defendant. This remains true despite the fact that this Court would be required to find, in an independent action brought by Defendant [Castleberry], that Defendant is legally entitled to recover garnishments paid pursuant to a void judgment. While this result seems illogical and inefficient, absent authority to the contrary, I cannot order restitution to Defendant [Castleberry] in this action.
Ex. L at 2, 3, 7 and 9 (second and third paragraph breaks added). In short, Judge Tolen held that H S's claim against Castleberry for the alleged debt is time-barred but that she could not order H S to give back any monies they collected by garnishing his wages.
Castleberry's Claims
Castleberry alleged that H S's 1998 state-court complaint and summons constituted an initial communication as defined by the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"), and that Neuman failed to mail Castleberry the required notice under 15 U.S.C. § 1692g(a) within five days of the initial contact. Am. Comp. ¶¶ 11-13; see Ex A (H S complaint) and Ex B (H S summons). Namely, Castleberry contends that the FDCPA required Neuman to mail him a notice which did the following:
(1) states that, if the alleged debtor did not dispute any part of the debt within thirty days after receiving the notice, the debt collector would assume that the debt was valid;
(2) states that, if the debtor notified the collector in writing within thirty days that he disputed part or all of the debt, the collector would obtain written verification of the debt or a copy of the judgment against the alleged debtor and mail it to the debtor;
(3) states that, upon the debtor's written request within thirty days, the collector would provide the name and address of the original creditor, if different from the current creditor;
(4) states that, upon the debtor's written request within thirty days that he is disputing the debt or requesting the name and address of the original creditor, the collector would cease attempting to collect any disputed portion of the debt until the collector obtains verification of the debt or judgment and name/address of the original creditor and mails it to the debtor;
(5) provides the debtor with the name and address of the original creditor, as required by § 1692g(b);
(6) states that the communication came from a collector in an attempt to collect a debt and that any information obtained would be used for that purpose, as required by § 1692e(11).
Am. Comp. ¶¶ 14-19.
Castleberry also alleges that Neuman violated the FDCPA in December 1998 by falsely stating that Castleberry was a resident of Berrien County, Michigan, when Neuman knew or reasonably should have discovered that he was not a resident of Michigan. Castleberry points out that his Tennessee commercial driver's license expired on September 21, 1998, and he moved from Tennessee to Indiana on November 30, 1998. Although Castleberry does not explicitly say so, the implication is that he did not live in Michigan when he incurred the H S debt or when Neuman filed H S's state-court action against him in December 1998.
According to Castleberry, Neuman's bringing suit against him in Michigan constituted harassing and abusive behavior in connection with the collection of a debt, as well as making a representation that is known or should be known to be false in an attempt to collect a debt, in violation of 15 U.S.C. § 1692(d) and § 1692e(10), respectively. Castleberry contends that Neuman knew or should have known that the proper venue for the debt-collection lawsuit was Tennessee (where he lived and where the debt originated), not Michigan (which had nothing to do with the transaction), and that filing suit in Michigan court violated 15 U.S.C. § 1692i(2)(a) and (b). See Am. Comp. ¶¶ 22-29 and 32-33 and Exs. C D (Castleberry's Indiana Official Driving Record dated Oct. 2, 2006).
Castleberry further alleges that Neuman filed a false affidavit of service, when in fact he knew that Castleberry had never been properly served in the Michigan state-court action. Am. Comp. ¶¶ 37-38. In addition, Castleberry contends that Neuman's 1999 and 2005 wage garnishments violated the FDCPA as well. Am. Comp. ¶¶ 49, 59 and 64.
As for the federal Fair Credit Reporting Act ("FCRA"), Castleberry contends that the employers to whom Neuman mailed wage-garnishment notices should be considered "consumer reporting agencies" for purposes of the FCRA because they report truck-driver employment histories and driving records to a company called DAC Services. Am. Comp. ¶ 67. Therefore, Castleberry reasons, Neuman violated the FCRA by failing to notify consumer reporting agencies (the two employers) that Castleberry disputes the debt, that the state-court judgment had been vacated as void, and that the wage-garnishment writs had been quashed. Am. Comp. ¶¶ 74-76.
Procedural History
Proceeding pro se, Dominic Castleberry sued six defendants in the United States District Court for the Eastern District of Michigan in January 2007: Neuman Law P.C., Martin H. Neuman, Neuman Canjar, H S Financial (the creditor on whose behalf Neuman sued Castleberry), CNA Surety Corporation, and H S's President Greg Hill. The case was assigned to the Honorable Thomas L. Ludington, United States District Judge. Pursuant to Castleberry's written stipulation, Judge Ludington dismissed three defendants with prejudice in April 2007: H S, CNA Surety, and Greg Hill. See Am. Comp. ¶ 10. That left only the three Neuman defendants in this case.
On Neuman's motion, Judge Ludington transferred this case to this court on August 31, 2007 pursuant to 28 U.S.C. § 1404(a). Pursuant to Castleberry's written stipulation, this court dismissed defendant Neuman Canjar with prejudice on September 18, 2007. The remaining two defendants, Martin Neuman and Neuman Law P.C., filed a motion for a more definite statement, which was referred to the Honorable Ellen S. Carmody, United States Magistrate Judge. Castleberry filed an amended complaint on November 26, 2007, however, so Magistrate Judge Carmody denied Neuman's motion for a more definite statement without prejudice as moot on November 30, 2007. The Neuman defendants filed an answer to the amended complaint on December 13, 2007.
Castleberry's opposition brief apparently seeks to rely on claims and allegations contained in his original complaint filed in this case or a prior case that he refers to as "07-10293." See Opp'n at 2 ("Plaintiff's Original Complaint, First Amended Verified Complaint and Exhibits alleges several Constitutional Due Process violations committed by the Defendants. . . .") (emphasis added).
Castleberry cannot rely on claims and allegations asserted in the original complaint from any case where he filed an amended complaint, because an amended complaint automatically supersedes and replaces the earlier complaint as a matter of law. See Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 702 (1982) ("[O]nce accepted, an amended complaint replaces the original.") (White, J., concurring in part dissenting in part on other grounds, joined by Powell, Rehnquist, O'Connor, JJ.); Vadas v. US, 527 F.3d 16, 22 n. 4 (2d Cir. 2007) (the filing of an amended complaint "render[s] the original complaint null and void. . . .") (adopting party's quotation from district court decision).
See, e.g., ComputerEase Software v. Hemisphere Corp., 2007 WL 852103, *1 (S.D. Ohio Mar. 19, 2007) ("Since the amended complaint replaces the original complaint. . . ."); Scuba v. Wilkinson, 2006 WL 2794939, *2 (S.D. Ohio Sept. 27, 2006) ("Since the amended complaint replaces the original complaint. . . ."); Ky. Press Ass'n v. Ky., 355 F. Supp.2d 853, 857 (E.D. Ky. 2005) ("Plaintiff's amended complaint supercedes the original complaint. . . .") (citing Parry v. Mohawk Motors of Mich., 236 F.3d 299, 306 (6th Cir. 2000)), app. dis., 454 F.3d 505 (6th Cir. 2006).
Nor could the amended complaint be deemed to incorporate by reference any legal claims or factual allegations that were expressly stated in the original complaint but not in the amended complaint. See Derderian v. Genesis Health Care Sys., 689 N.W.2d 145, 158-59 (Mich.App. 2004) ("MCR 2.118(A)(4), by requiring compliance with MCR 2.113, requires amended pleadings to be complete unto themselves. * * * [P]laintiffs' attempt to incorporate Dr. Derderian's WPA claim into the second amended complaint by reference to the first amended complaint fails.").
On Monday, February 11, 2008, Neuman moved for judgment on the pleadings. Castleberry did not file an opposition brief until March 27, 2008.
The Court is Entitled to Disregard Castleberry's Untimely Opposition Brief
Neuman's certificate of service states that on Monday, February 11, 2008, he mailed the motion by regular first-class U.S. mail to Castleberry. Because both of the offices listed by defense counsel (Bloomfield Hills, Michigan and Holt, Michigan) are less than 100 miles from plaintiff's address (Saginaw, Michigan), the court could reasonably assume that the motion reached Castleberry within three days, i.e., no later than Thursday, February 14, 2008.For Castleberry's benefit, however, the court assumes arguendo that he did not receive the motion until Tuesday, February 19, 2008 — that was seven "mailing days" after it was mailed. For Castleberry's benefit, the court has not counted the following three days as "mailing days": the day on which the motion was mailed, Monday, February 11, 2008 (because the motion could have been placed in a mailbox or delivered to the post office at or after the end of the business day); Sunday, February 17, 2008, when there was no regular U.S. mail service; and Monday, February 18, 2008, when there was no regular U.S. mail service due to the Presidents' Day holiday. Even on this assumption, Castleberry's response to the motion was untimely.
Under this court's rules, a motion for judgment on the pleadings is a dispositive motion, see W.D. MICH. L.CIV.R. 7.2(a) and 7.3(a), and a party has 28 days to respond to such a motion, see W.D. Mich. L.Civ.R. 7.2(c). Under FED. R. CIV. P. 6, the time to respond to a filing does not begin running until the day after one receives the filing. Therefore, Castleberry's 28 days to respond to the motion began on Wednesday, February 20, 2008 and ended at midnight on Tuesday, March 18, 2008. Castleberry did not file an attempted response to the motion until Thursday, March 27, 2008, nine days after the generously-calculated deadline. Even if the court treats the response as filed on the date when Castleberry mailed it, that is of no avail to Castleberry: he handwrote the date "3/26/08" on the signature page of his opposition brief, i.e., Wednesday, March 26, 2008.
Castleberry never moved for an extension of time, and he offers no explanation for his untimeliness. "Even a party proceeding pro se is not entitled to disregard the Federal Rules of Civil Procedure. Nor is a party entitled to disregard the Local Rules of the United States District Court. . . ." Krantz, Inc. v. Nissan North Am., Inc., 408 F. Supp.2d 854, 865 (D.S.D. 2005) (citing Carman v. Treat, 7 F.3d 1379, 1381 (8th Cir. 1993)); cf. Cacevic v. City of Hazel Park, 226 F.3d 483, 492 (6th Cir. 2000) (district court properly disregarded evidence proffered after grant of summary judgment; "Although it may seem harsh to turn a blind eye to the . . . belated proffer of evidence, that is the price to be paid by litigants who do not comply with the rules. . . .").
This court is not obligated to consider Castleberry's untimely response. See US v. Pleasant, 12 F. App'x 262, 269 (6th Cir. 2001) ("[W]e are not obligated to consider the issues raised by [pro se] defendant's untimely brief. . . ."); Westrick v. Dow Corning Corp., 2008 WL 269068, *3 (E.D. Ky. Jan. 29, 2008) (when plaintiff filed opposition to summary judgment motion about nineteen days after the deadline established by local rules, court noted, "He has not explained his failure to file a timely response nor asked the court's permission to file an untimely response. Accordingly, the court need not consider the response at all.").
Accordingly. the court will treat the defendants' motion as unopposed. See, exercising discretion to disregard untimely opposition briefs: Festa v. Cornier, 2007 WL 2331946, *1 (D.P.R. Aug. 13, 2007) ("This court is not obligated to consider the plaintiff's untimely opposition to the motion to dismiss. 'Rules are rules and the parties must play by them.' Consequently, this court deems defendants' motion to dismiss as unopposed.") (quoting Mendez v. Banco Popular de P.R., 900 F.2d 4, 7 (1st Cir. 1990)); Schwartz v. Potter, 2005 WL 1148734, *1 (N.D. Tex. 2005) (plaintiff's opposition was due on about April 5 but not filed until May 2; "Plaintiff has not shown good cause for failure to file a timely response. Nor did Plaintiff seek an order from the Court for an extension of time. Thus, the Court need not consider Plaintiff's untimely response."); Iglesias-Gonzales v. Ponderosa, Inc., 2004 WL 2793187, *1 (D.P.R. 2004) (disregarding plaintiff's brief filed on December 1 in opposition to motion to dismiss filed on October 7).
See also Hayes v. Konteh, 2008 WL 596097, *2 (N.D. Ohio Mar. 4, 2008) ("[T]he Court need not consider this untimely objection. . . .").
Accord US v. Ramirez, 148 F. App'x 721, 727-28 (10th Cir. 2005) ("We need not consider this or Mr. Ramirez's other claims . . . which were subsequently contained in a supplemental pleading that the district court determined was untimely filed. With respect to the latter, the district court clearly did not abuse its discretion in finding the supplemental memorandum of law was untimely filed."), cert. denied, 547 U.S. 1009 (2006);
Doe v. Cunningham, 30 F.3d 879, 882 n. 2 (7th Cir. 1994) (Manion, J.) (noting that the district court had stricken the plaintiff's untimely responses to defendants' motions for summary judgment);
Rojas v. City of New Brunswick, 2007 WL 1101439, *3 (D.N.J. Apr. 9, 2007) ("[T]he Court notes that it need not consider Plaintiff's motion because it is untimely.");
Lozaya v. Garrou Const., Inc., 2006 WL 1028869, *1 n. 1 (D. Colo. Apr. 17, 2006) ("The Court directed Plaintiff's response to be filed no later than April 3, 2006. Plaintiff filed his Response on April 6, 2006. The Court need not consider this untimely filing. . . .") (record citation omitted);
Galaxy Ventures, LLC v. Rosenblum, 2005 WL 5988690, *1 (D.N.M. July 21, 2005) ("the Court is not obligated to consider Plaintiff's late response" to motion to strike an expert report);
Webb v. UnumProvident Corp., 507 F. Supp.2d 668, 677 n. 11 (W.D. Tex. 2005) (court noted that it "need not consider" that portion of a response (to plaintiff's remand motion) which was late);
SEC v. Intelliquis Int'l, Inc. 2003 WL 23356426, *1 (D. Utah Dec. 11, 2003) (noting that local rule permitted court to "ignore" an untimely opposition to a motion for summary judgment);
Marshall v. Gates, 812 F. Supp. 1050, 1057 n. 25 (C.D. Cal. 1993) ("[T]he court need not consider untimely affidavits opposing a summary judgment. * * * [A] court, in its discretion, can disregard untimely filed opposition materials.") (citing Ashton-Tate Corp. v. Ross, 916 F.2d 516, 520 (9th Cir. 1990)), rev'd o.g., 44 F.3d 722 (9th Cir. 1995);
Johnson v. United Airlines, 1987 WL 45230, *1 (D. Haw. Aug. 28, 1987) ("The late filing was clearly in violation of [rule] requiring all opposition briefs to be filed eighteen (18) days before the hearing. The court need not consider memoranda which [violate] the Local Rules.").
Legal Standard: Motion for Judgment on the Pleadings
"It is well settled that a court must review a Rule 12(c) motion under the same standard applicable to a Rule 12(b)(6) motion [to dismiss for failure to state a claim on which relief can be granted]." Zeigler v. Mieskiewicz, 2008 WL 650335, *2 (S.D. Ohio Mar. 5, 2008) (citing Lindsay v. Yates, 498 F.3d 434, 438 (6th Cir. 2007)).A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) turns on legal issues, not an assessment of the evidence. Technology Recycling Corp. v. City of Taylor, 186 F. App'x 624, 640 n. 5 (6th Cir. 2006) (Griffin, J.) (" Tech Rec"); see also Thomas v. Arn, 474 U.S. 140, 150 n. 8 (1985) ("[M]otions for judgment on the pleadings and dismissal for failure to state a claim on which relief can be granted . . . consist exclusively of issues of law."). A Rule 12(c) motion is simply one permissible avenue for contending that the complaint should be dismissed because it fails to state a claim on which relief can be granted. See Arbaugh v. Y H Corp., 546 U.S. 500, 507 (2006) ("a defense of failure to state a claim upon which can be granted . . . may be made in any pleading . . . or by motion for judgment on the pleadings, or at the trial. . . .") (quoting FED. R. CIV. P. 12(h)(6)).
Like a motion to dismiss for failure to state a claim, a motion for judgment on the pleadings "presume[s] as a legal matter the lack of any need for an evidentiary hearing. . . ." US v. Raddatz, 447 U.S. 667, 693-94 (1980). Indeed, on a Rule 12(c) motion, the court must accept all of the complaint's factual allegations as true and construe the complaint in the light most favorable to the plaintiff. Tech Rec, 186 F. App'x at 640 n. 5 (citing Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692, 697 (6th Cir. 2005) (" PONI")); see also Bohanan v. Bridgestone/Firestone No. Am. Tire, LLC, ___ F. App'x ___, 2008 WL 215749, *1 (6th Cir. 2008) (citing Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 511-12 (6th Cir. 2001)). But the court need not draw unwarranted factual inferences or accept the plaintiff's legal conclusions. Bohanan, ___ F. App'x at ___, 2008 WL 215749 at *1 (citing Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999)). And each claim's factual allegations must plausibly suggest a viable claim; the claim must be plausible and not merely conceivable. Twombly, ___ U.S. at ___, 127 S.Ct. at 1974.
When considering whether to grant a Rule 12(c) or 12(b)(6) motion, the court primarily considers the complaint's allegations, but may also take into account items appearing in the record and attached exhibits. LaFace Records, LLC v. Does 1-5, 2008 WL 513508, *3 (W.D. Mich. Feb. 22, 2008) (Maloney, J.) (citing Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001)).
Count One, Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1691
FDCPA's One-Year Statute of Limitations
As Neuman correctly notes, the most recent action that Castleberry contends violates the FDCPA was a wage garnishment or wage-garnishment attempt that occurred in June 2005. See Am. Comp. ¶ 51. The FDCPA imposes a one-year statute of limitations, 15 U.S.C. § 1692k(d). Lewis v. ACB Business Servs., Inc., 135 F.3d 389, 404 n. 12 (6th Cir. 1998).
Court Assumes that Amended Complaint Relates Back to Date of Original Complaint
Castleberry filed the instant first amended complaint on November 26, 2007. In determining when the limitations period began, however, the court makes an assumption for Castleberry's benefit. Specifically, the court assumes arguendo that the first amended complaint's FDCPA claim "relates back" to the date when he filed the original complaint in this action, January 18, 2007. See generally US ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 5156 (6th Cir. 2007) ("An amendment of a pleading relates back to the date of the original pleading when . . . (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.") (quoting FED. R. CIV. P. 15(c)(2)), reh'g reh'g en banc denied (Jan. 17, 2008); see, e.g., Canterbury v. Columbia Gas of Ohio, 2001 WL 1681132, *8 (S.D. Ohio Sept. 25, 2001) ("There is no dispute that Plaintiff filed her Second Amended Complaint . . . well outside the [FDCPA's] statutory period. Thus, the Court must decide if, under [FED. R. CIV. P.] 15 . . . the additional claims raised by the plaintiff relate back to [the] date of the filing of the original Complaint."); Schulz v. Davis, 495 F.3d 289 (6th Cir. 2007) (applying Tennessee's relation-back/"savings" statute) (Ann Aldrich, U.S.D.J., sitting by designation).
Court Determines that Castleberry's FDCPA Cause of Action Accrued in 1999
Giving Castleberry the benefit of the relation-back doctrine, the question becomes whether his FDCPA cause of action accrued more than one year before he filed the original complaint in this action on January 18, 2007. The court finds that it did.
When a federal statutory cause of action accrues is a question that is determined by reference to federal case law, not by reference to state law. Wallace v. Cato, ___ U.S. ___, 127 S.Ct. 1091, 1095 (Scalia, J.) ("[T]he accrual date of a [42 U.S.C.] § 1983 cause of action is a question of federal law that is not resolved by reference to state law."), reh'g denied, ___ U.S. ___, 127 S.Ct. 2090 (2007). If there are two plausible constructions of a statute of limitations, the court "should adopt the construction that starts the time limit running when the cause of action . . . accrues." Graham Cty. Soil Water Conservation Dist. v. US ex rel. Wilson, 545 U.S. 409, 419 (2005) (Thomas, J.) (footnote omitted).
Under federal common-law rules "conforming in general to common-law tort principles," it is "'the standard rule that accrual occurs when the plaintiff has a complete and present cause of action.'" Wallace, ___ U.S. at ___, 127 S.Ct. at 1095 (quoting Bay Area Laundry Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Calif., 522 U.S. 192, 201 (1997) (quoting Rawlings v. Ray, 312 U.S. 96, 98 (1941))), "that is, when 'the plaintiff can file suit and obtain relief. . . .'" Wallace, 127 S.Ct. at 1095 (citing Bay Area, 522 U.S. at 201). Under traditional accrual rule, a tort cause of action accrues, and the limitations period starts running, "'when the wrongful act or omission results in damages. The cause of action accrues even though the full extent of the injury is not then known or predictable.'" Cooey v. Strickland, 479 F.3d 412, 419 (6th Cir. 2007) (quoting Wallace, ___ U.S. at ___, 127 S.Ct. at 1097 (treatise citations omitted)), cert. denied, ___ U.S. ___, 128 S.Ct. 2047 (2008). Thus, the court inquires whether Castleberry knew or reasonably should have known of the asserted basis for his FDCPA claim — i.e., that the alleged violation of the FDCPA had damaged him — more than one year before he filed the original complaint in this action on January 18, 2007. See Holdsworth v. Najeway, No. 95-3911, 99 F.3d 1199, 1996 WL 599817, *1 (6th Cir. Oct. 17, 1996) ("In this Circuit a claim accrues on the date a party claiming injury knew or reasonably should have known of the injury on which his claim is based.") (citing Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir. 1991)).
The court finds that Castleberry knew that he had suffered damages when he learned that his wages had been garnished, sometime shortly after Neuman mailed the garnishment letter to Landstar Gemini in June 1999. Castleberry not only knew that he had suffered damages (the garnishment); he was put on inquiry notice of possible actionable misconduct by Neuman long before Judge Tolen's January 2007 opinion.
The court infers from Judge Tolen's opinion that Castleberry's wages were actually garnished as a result of those letters (otherwise, Judge Tolen would not have discussed the issue of whether Castleberry could recover amounts that were taken from his wages pursuant to garnishment writs whose underlying judgment was later held to be void).
When Castleberry learned that Neuman had sent wage-garnishment letters to two of his employers, a reasonable person in his circumstances would try to find out the purported legal authority for H S/Neuman to garnish his wages. If Castleberry had conducted a minimally diligent investigation, he would have learned (and perhaps did learn) in 1999 that Neuman had secured the garnishment writs in order to collect a default judgment that had been entered against him in Berrien County court in April 1999. From there, it was a short step to Castleberry requesting a copy of the default-judgment case file from Neuman or from the Berrien County court itself. A look at the complaint would have revealed that it was an effort to collect an alleged debt to H S, and that it (in Castleberry's view) violated the FDCPA.
Castleberry's FDCPA Claim is Time-Barred Unless Equitable Tolling Applies
Absent equitable tolling, then, the FDCPA's one-year limitations period began to run sometime in the second half of 1999, over seven years before Castleberry filed the original complaint in this action in January 2007. Cf., e.g., Kafele v. Frank Wooldridge Co., 108 F. App'x 307, 308 (6th Cir. 2004); Bygrave v. Van Reken, 238 F.3d 419, 2000 WL 1769587, *5 (6th Cir. Nov. 14, 2000) ("the appellee's final attempt to collect any money from Bygrave took place in 1995, when the last non-payment of rent action was commenced against her. Additionally . . . Bygrave's concedes that the most recent eviction against her was instituted on October 1, 1996. In light of these facts, any FDCPA claim stemming from a misrepresentation concerning the nature of her debt became time-barred long before Bygrave filed her complaint on March 23, 1998."). No Basis for Equitable Tolling of FDCPA's One-Year Limitations Period
See also Saint Torrance v. Firstar, 529 F. Supp.2d 836, 847-48 (S.D. Ohio 2007) (former property-owner's FDCPA claim against utility company stemming from alleged failure to transfer utility billing to new owner's name, accrued on last date that utility company contacted him about alleged debt, so his claim filed nearly two years after that contact was time-barred);
Kafele v. Javitch, Block, Eisen Rathbone LLP, 2004 WL 5178125, *9 (S.D. Ohio Sept. 27, 2004) ("Plaintiff filed this action on July 17, 2003. Thus, plaintiff's claims that are based on the May 9, 2002 collection letter, or any other alleged violation that occurred prior to July 17, 2002, are barred by the [FDCPA] statute of limitations.").
Neither the Supreme Court nor our Circuit has decided whether the equitable-tolling doctrine applies in the FDCPA context. For Castleberry's sake, the court assumes arguendo that the doctrine does apply in the FDCPA context. See Holmes v. TRS Recovery Servs., Inc., 2007 WL 4481274, *4 n. 5 (M.D. Tenn. Dec. 18, 2007) ("The previous ruling in this case concluded that the doctrine of equitable tolling is appropriate in cases arising under the FDCPA. . . ."); Foster v. D.B.S. Collection Agency, 463 F. Supp.2d 783, 799-800 (S.D. Ohio 2006) (applying equitable tolling and estoppel doctrines to FDCPA limitations period, by analogy to the holding in Jones v. TransOhio Savings Ass'n, 745 F.2d 1037, 1040 (6th Cir. 1984) that those doctrines applied to the federal Truth in Lending Act, 15 U.S.C. § 1604(e)).
Accord Somin v. Total Cmty. Mgmt. Corp., 494 F. Supp.2d 153 (E.D.N.Y. 2007) ("As with any . . . statute of limitations, the FDCPA is subject to equitable tolling in appropriate circumstances."); Clark v. Bonded Adjustment Co., 176 F. Supp.2d 1062, 1066-67 (E.D. Wash. 2001) (following a rebuttable presumption that statutes of limitations are procedural rather than jurisdictional, court so held with regard to FDCPA's limitations period).
But see In re Rice-Etherly, 336 B.R. 308, 313 (Bankr. E.D. Mich. 2006) (FDCPA's statute of limitations is a jurisdictional limitation which a court is not free to disregard) (citing Mattson v. U.S. West Comms., 967 F.2d 259, 262 (8th Cir. 1992) ("We are not at liberty to disregard the jurisdictional limitations Congress has placed upon the federal courts, however appealing it might be to interpret section 1692k(d) in such a way as to permit [the] action to proceed."));
Chisholm v. Charlie Falk Auto Wholesalers, Inc., 851 F. Supp. 739, 745 (E.D. Va. 1994), ("The limitations period here . . . is found in a section of the statute entitled merely 'Jurisdiction.' * * * [T]he limitations period of § 1692k(d) is found in the same sentence that creates the federal court jurisdiction, making it reasonable to conclude that Congress intended to create a jurisdictional time limitation. * * * For these reasons, the Court holds that 15 U.S.C. § 1692k(d) creates a jurisdictional limitation of one year that cannot be equitably tolled.), vac'd o.g. sub nom. Chisholm v. TranSouth Fin. Corp., 95 F.3d 331 (4th Cir. 1996).
Even so, our Circuit has repeatedly cautioned that equitable tolling should be applied sparingly. White v. US, 2007 WL 2461698, *3 (W.D. Mich. Aug. 27, 2007) (Bell, C.J.) (citing, inter alia, Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003)). The burden is on the party seeking tolling to show that it is warranted. Jagodka v. Lafler, 148 F. App'x 345, 347 (6th Cir. 2005) (citing Griffin v. Rogers, 399 F.3d 626, 635 (6th Cir. 2005) (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990))), cert. denied, 546 U.S. 1172 (2006).
See also Johnson-Brown v. Wayne State Univ., 173 F.3d 855, 1999 WL 191322, *2 (6th Cir. Mar. 17, 1999) (plaintiff whose Title VII claim was time-barred "had the burden of showing that waiver, estoppel, or equitable tolling is applicable to her case") (citation to D.C. Circuit omitted);
Vana v. Mallinckrodt Med., Inc., 70 F.3d 116, 1995 WL 675597, *2 (6th Cir. Nov. 8, 1995) ("Once [defendant] raised [ADEA plaintiff]'s noncompliance with the 300-day filing requirement as a defense, [plaintiff] bore the burden of showing that equitable tolling was appropriate.") (citations to D.C. and 11th Circuits omitted);
Butler v. Howes, 2008 WL 659499, *1 (W.D. Mich. Mar. 6, 2008) (Enslen, J.) ("To benefit from equitable tolling, a petitioner must show that: 1) he was diligently pursuing his rights; and 2) some extraordinary circumstances stood in the way of his timely compliance.") (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) and Andrews v. Orr, 851 F.2d 146, 152 (6th Cir. 1988)).
To decide whether equitable tolling applies, our Circuit considers five factors: (1) the party's lack of actual notice of the filing requirement, (2) the party's lack of constructive notice of the filing requirement, (3) the party's diligence in pursuing his rights, (4) the absence of prejudice to the other party, and (5) the party's reasonableness in remaining ignorant of the legal requirement for filing his claim. Dunlap v. US, 250 F.3d 1001, 1008 (6th Cir. 2001) (citing Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988)). These five factors are not necessarily comprehensive and may not all be relevant in every case. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002).
Castleberry has not carried his burden of showing a basis on which to equitably toll the FDCPA's one-year limitations period on the facts of this case, and the court discerns no basis for doing so. It is not enough for Castleberry to make the general conclusory assertion that Neuman has been deceptive throughout the dispute over his alleged debt to H S. Rather, he must show specifically what Neuman did or said that prevented him from timely filing the FDCPA claim. Castleberry's amended complaint asserts only:
Plaintiff allege[s] that due to the false and deceptive acts throughout this process, the limitations period to file this complaint, should be tolled under the doctrine of equitable tolling. Equitable tolling is "appropriate where the plaintiff is actively misled by the defendant about the cause of action or is prevented from some extraordinary way from asserting his rights." Jackson, 2004 WL 1900484, at *4, n. 21 (citing Ramirez v. City of San Antonio, 312 F.3d 178, 183 (5th Cir. 2002)).
Am. Comp. ¶ 77. Even if the court considered Castleberry's untimely opposition brief, it merely asserts in conclusory fashion, "Defendants allege there is no evidence that Defendants actively misled Plaintiff about the cause of action to require equitable tolling, however, Exhibits A, B, C, D, E, F and G speak for themselves." Opp'n at 2.
Castleberry has not shown, as he must for equitable tolling here, that (1) he did not learn of Neuman's alleged FDCPA violations until less than a year before January 18, 2007, or (2) after learning of the wage garnishments in 1999, he exercised due diligence but some specific dishonesty of the defendants or some other truly extraordinary circumstance prevented him from learning of Neuman's alleged FDCPA violations until more than seven years later. Cf. Forfeiture of $1,006.00 v. City of Grand Rapids, 2005 WL 1047549, *3 (W.D. Mich. May 3, 2005) (Miles, J.) ("[P]laintiff's allegations do not account for the entire period between 1999 and 2004, when he finally filed his [ 42 U.S.C. § 1983] action. Plaintiff has not shown diligence, nor has he attempted to show that an 'extraordinary circumstance' prevented him from filing this action in a timely manner.").
Therefore, the court discerns no basis for the extraordinary measure of equitably tolling the FDCPA's one-year limitations period, and Castleberry's FDCPA claim is time-barred.
Cf. Deaville v. Capital One Bank, 425 F. Supp.2d 744, 752 (W.D. La. 2006) ("[E]ven if this court applies the doctrine of equitable tolling to the FDCPA, plaintiff's claim still falls as time-barred. * * * Plaintiff bears the burden of showing that he was somehow misled or hoodwinked by the Defendants. Here, there is simply no evidence that Plaintiff's failure to file until July 2003 was anything more than a failure to exercise the appropriate standard of due diligence.") (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)).
Count Four, Fair Credit Reporting Act, 15 U.S.C. § 1681
In count four, Castleberry claims that Neuman violated the federal Fair Credit Reporting Act by failing to establish or follow reasonable procedures to ensure maximum accuracy regarding the information it maintains regarding him; failing to report accurate information to his employers; failing to correct and update the information it reported to his employers, such as failing to notify them that the default judgment and wage-garnishment writs had been set aside by court order; and by failing to remove said judgment and garnishment writs from his file. Am. Comp. ¶ 86.An FCRA claim must be brought by the earlier of these two dates:
(1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or
(2) 5 years after the date of the violation that is the basis for such liability occurs.See, e.g., Briley v. Burns Int'l Safetohire.com, 78 F. App'x 481, 485 (6th Cir. 2003) (citing 15 U.S.C. § 1681p). Castleberry filed the instant first amended complaint on November 26, 2007. In determining when the limitations period began, however, the court assumes arguendo that the first amended complaint's FCRA claim "relates back" to the date when he filed the original complaint in this action, January 18, 2007. Therefore, any FCRA cause of action that accrued before January 18, 2005 — according to the rule set forth in 15 U.S.C. § 1681p — will be time-barred unless Castleberry shows that he is entitled to equitable tolling of the FCRA limitations period.
Count four itself does not specify precisely what Neuman did to violate the FCRA. From a review of the rest of the amended complaint, though, it appears that Neuman correctly identified the conduct that Castleberry believes violated the FCRA. Neuman correctly notes that the amended complaint alleges only one violation of the FCRA that falls within the FCRA's two-year limitations period, i.e., that occurred within the two years preceding the filing of Castleberry's original complaint on January 18, 2007: instituting wage garnishment with Morgan Southern, Inc., in June 2005. Accordingly, the court finds that all other alleged FCRA violations are time-barred, including but not limited to the filing of H S's state-court complaint in December 1998, obtaining a default judgment in that action in April 1999, and filing and mailing a wage-garnishment notice to the Landstar Gemini company in June 1999. Neuman took all those actions more than five years before Castleberry filed the original complaint in this action, so under 15 U.S.C. § 1681p they are time-barred regardless of when Castleberry discovered or reasonably should have discovered that they violated the FCRA. Because Castleberry has not filed a response to Neuman's motion, he has not shown that he is entitled to invoke the FCRA's limited equitable-tolling provision.
Cf. Hahn v. Star Bank, 190 F.3d 708, 713 (6th Cir. 1999):
the tolling language in § 1681p only applies to the wilful misrepresentation of material information "required under [the FCRA] to be disclosed." [Bank vice-president] Bonynge's alleged statement regarding the subpoena [which the bank cited as the basis for its release of plaintiff's file] does not fit within the statutory language. The question surrounding the subpoena's validity in no way relates to information that Star Bank would be required to disclose under FRCA, even assuming that FCRA's requirements apply to Star Bank. ( See 15 U.S.C. § 1681a(f) for the definition of a "consumer reporting agency.") The Hahns' claimed reliance on whatever Bonynge said regarding the subpoena therefore provides them with no basis to toll the two-year statute of limitations.Id. at 713.
Neuman contends that even the non-time-barred portion of the FCRA claim — filing and mailing a notice of wage garnishment to Morgan Southern, Inc. in June 2005 — does not state a claim for violation of the FCRA, as a matter of law, because Morgan Southern is not a "consumer reporting agency" within the meaning of the FCRA. Neuman also contends that the information that Morgan Southern would disseminate is specifically excluded from the definition of consumer report under 15 U.S.C. § 1681a(d)(2), because the information relates "solely as to transactions or experiences between the consumer and itself." Neuman Mot. at 2.
For purposes of this motion, the court assumes arguendo that Morgan Southern qualifies as a consumer reporting agency as defined by the FCRA, even though there is a strong argument that it is not such an agency, see Miller v. Trans Union Corp., 24 F. App'x 422, 423-24 (6th Cir. 2001) ("Neither Bank One nor Safeway Tire are 'consumer reporting agencies' as defined by the FCRA. Miller presented no evidence that they regularly assembled or evaluated consumer credit information in order to furnish consumer reports to third parties."). Even if Morgan Southern is an FCRA consumer reporting agency, the court agrees with Neuman that the information that Morgan Southern would disseminate does not qualify as a consumer report as defined by the FCRA. The FCRA provides,
The FCRA defines consumer reporting agency as
any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.15 U.S.C. § 1681a(f).
Except as provided in paragraph (3) [governing medical information], the term "consumer report" does not include —
(A) subject to section 1681s-3 of this title [], any —
(I) report containing information solely as to transactions or experiences between the consumer [Castleberry] and the person making the report;
(ii) communication of that information among persons related by common ownership or affiliated by corporate control; or
(iii) communication of other information among persons related by common ownership or affiliated by corporate control, if it is clearly and conspicuously disclosed to the consumer that the information may be communicated among such persons and the consumer is given the opportunity, before the time that the information is initially communicated, to direct that such information not be communicated among such persons.
(B) any authorization or approval of a specific extension of credit directly or indirectly by the issuer of a credit card or similar device;
(C) any report in which a person who has been requested by a third party to make a specific extension of credit directly or indirectly to a consumer conveys his or her decision with respect to such request, if the third party advises the consumer of the name and address of the person to whom the request was made, and such person makes the disclosures to the consumer required under section 1681m of this title;
(D) a communication described in subsection (o) or (x) of this section [governing certain statements to a prospective employer and certain statements made to an employer in connection with an investigation of an employee, respectively].15 U.S.C. 1681a(d)(2), Exclusions. See generally American Bankers Ass'n v. Gould, 412 F.3d 1081, 1084 (9th Cir. 2005) ("In the terminology used by the financial industry," the type of information excluded by § 1681a(d)(2) is referred to as "'experience information' — i.e., information obtained by financial institutions from their own dealings with their customers.").
Castleberry has not demonstrated that any report generated by Morgan Southern and sent to other parties would cover information pertaining to something beyond its own experiences with Castleberry, so such reports are excluded from the FCRA's definition of "consumer report." Namely, Morgan Southern furnishes only truck-driver employment histories and driving records to DAC Services, not information about employee credit, debts, late payments, delinquencies, judgments, and garnishments. Thus, any false, inaccurate, misleading or incomplete employment-history or driving-record information that Morgan Southern communicated to Neuman would not relate to Castleberry's commercial or credit "transactions or experiences", let alone such transactions or experiences between Castleberry and parties other than Morgan Southern. Contrast Nunnally v. Equifax Info. Servs., LLC, 451 F.3d 768, 772-73 (6th Cir. 2006) (holding that the 15 U.S.C. 1681a(d)(2) exclusion from the definition of "consumer report" did not apply); Owner-Operator Indep. Driver Ass'n, Inc. v. Usis Commercial Servs., Inc., 410 F. Supp.2d 1005 (D. Colo. 2005) (plaintiff showed a genuine issue as to whether the 1681(d)(2) exclusion applied to termination reports of independent truck drivers provided by investigation/security company to prospective employers; "Defendant claims the Termination Report forms fall within this exception [to the definition of 'consumer report'] because they merely reflect transactions between the submitting motor carriers and their former employees. However, plaintiffs' complaint alleges . . . that the Termination Report forms include not only information regarding the interactions between the submitting motor carriers and drivers, but also information about interactions between drivers and shippers. Accepting these allegations as true, which I must at this early junct[ure], the forms may contain information beyond the first-hand experience of the employer. Dismissal therefore is not warranted on this basis.") (emphasis added).
Consequently, the non-time-barred portion of Castleberry's FCRA claim fails to state a claim on which relief can be granted.
Castleberry's State-Law Claims
Having disposed of Castleberry's federal claims, the court has the discretion under 28 U.S.C. § 1367(c)(3) to decline supplemental jurisdiction over his remaining claims, which sound only in state law. "Supplemental jurisdiction is a doctrine of discretion, not of plaintiff's right," Habich v. City of Dearborn, 331 F.3d 524, 535 (6th Cir. 2003), and "a federal court that has dismissed a plaintiff's federal-law claim should not ordinarily reach the plaintiff's state-law claims." Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006) (citing 28 U.S.C. § 1367(c)(3) and United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly if the federal claims are dismissed before trial . . . the state claims should be dismissed as well.")), cert. denied, ___ U.S. ___, 127 S.Ct. 1832 (2007). See also Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996) ("When all federal claims are dismissed before trial, the balance of considerations usually will point to dismissing the state law claims. . . ."); Aschinger v. Columbus Showcase Co., 934 F.2d 1402, 1412 (6th Cir. 1991) (only "overwhelming interests in judicial economy may allow a district court to properly exercise its discretion and decide a pendent state claim even if the federal claim has been dismissed").As is usually the case, the interests of justice and comity are served by deferring to Michigan's courts, which are best equipped to interpret and apply their own State's law in the first instance. See, e.g., Widgren v. Maple Grove Twp., 429 F.3d 575, 585 (6th Cir. 2005) ("We hold that the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over the state law issues based on its consideration of the interests of justice and comity best served by a state court's resolution of the remaining state law claims."); Toma v. Gen. Revenue Corp., 2008 WL 302378, *4 (E.D. Mich. Feb. 1, 2008) (after dismissing FDCPA claim as time-barred, court declined supplemental jurisdiction over state-law claims).
See, e.g., exercising 28 U.S.C. § 1376(c)(3) discretion to decline supplemental jurisdiction over state-law claims and dismiss those claims without prejudice:
Westberg v. Russell, 2008 WL 205208, *1 (W.D. Mich. Jan. 23, 2008) (Enslen, J.);
Poindexter v. McKee, 444 F. Supp.2d 783 (W.D. Mich. 2006) (Miles, J.);
Reinhardt v. Dennis, 399 F. Supp.2d 803, 811 (W.D. Mich. 2005) (McKeague, J.);Glover v. Elliott, 2007 WL 4557853, *5 (W.D. Mich. Dec. 21, 2007) (Bell, C.J.) ("In light of the entry of summary judgment on Plaintiff's federal claims at an early stage . . ., the Court finds no good reason to exercise supplemental jurisdiction over Plaintiff's state law claims.");
Forner v. Robinson Tp. Bd., 2007 WL 2284251, *8 (W.D. Mich. Aug. 7, 2007) (Quist, J.);
Henderson v. Caruso, 2007 WL 1876471 (W.D. Mich. June 28, 2007) (adopting R R of Greeley, M.J.); Williams v. Grand Rapids Pub. Library, 2007 WL 3346625, *7 (W.D. Mich. Nov. 9, 2007) (adopting R R of Scoville, M.J.);
Hardin v. MDOC, 2007 WL 1975102, *8 (W.D. Mich. Mar. 28, 2007) (Carmody, M.J.);
Lavean v. Randall, 2005 WL 2405957, *8 (W.D. Mich. Sept. 29, 2005) (Brenneman, M.J.);
Herron v. Caruso, 2005 WL 1862036, *6 (W.D. Mich. Aug. 2, 2005) (Edgar, J.).
ORDER
Judgment is GRANTED to the defendants on count one, the claim for violation of the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and said count is DISMISSED with prejudice. Judgment is GRANTED to the defendants on count four, the claim for violation of the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and said count is DISMISSED with prejudice.Counts two, three, five, and six, which assert claims under Michigan state law, are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3).
This is a final and appealable order.