Mangum v. Action Collection Service, Inc.

Decision Date04 August 2009
Docket NumberNo. 08-35191.,08-35191.
PartiesCamarie MANGUM, Plaintiff-Appellant, v. ACTION COLLECTION SERVICE, INC., dba Action Collection; Bonneville Billing & Collections, Inc.; City of Pocatello; Don Furu, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

DeAnne Casperson, Holden, Kidwell, Hahn & Crapo, P.L.L.C., Idaho Falls, ID, for the plaintiff-appellant.

Blake G. Hall, Anderson Nelson Hall Smith P.A., Idaho Falls, ID; Todd R. Erikson, Todd R. Erikson, P.A., Idaho Falls, ID, for the defendants-appellees.

Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, District Judge, Presiding. D.C. No. 4:05-CV-00507-BLW.

Before: DIARMUID F. O'SCANNLAIN, FERDINAND F. FERNANDEZ, and RAYMOND C. FISHER, Circuit Judges.

Opinion by Judge FERNANDEZ; Concurrence by Judge O'SCANNLAIN.

FERNANDEZ, Circuit Judge:

Camarie Mangum appeals the district court's determination that her action against Bonneville Billing & Collections, Inc. ("Bonneville"), under the Fair Debt Collection Practices Act ("FDCPA")1, was barred by the statute of limitations2 and that the discovery rule doctrine could not apply as a matter of law. That led to a grant of summary judgment3 against her.4

Mangum also appeals the district court's determinations that she had not shown a right to relief under 42 U.S.C. § 1983 against the City of Pocatello, Idaho, or Captain Don Furu based upon alleged violations of the FDCPA, the Fair Credit Reporting Act ("FCRA")5 and a claimed constitutional right to privacy. That led to the grant of a summary judgment on the claims based upon the statutes, and a judgment as a matter of law6 on the claim based upon the right of privacy. We affirm as to the City and Furu, but reverse as to Bonneville.

BACKGROUND

Mangum was a dispatcher for the City, who began work in November 1998, and was terminated on August 1, 2006. On December 2, 2004, Chief of Police Edward Guthrie was at a store in Pocatello, Idaho, where he observed a list containing names of individuals from whom checks would no longer be accepted. Mangum's name was on the list. Subsequently, Chief Guthrie directed Captain Furu to conduct an internal investigation to determine why Mangum's name was included on the list, and to assess whether Mangum was engaged in conduct that violated department policies relating to moral conduct and professional image.

As part of his investigation, Furu examined small-claims-court-actions files that contained copies of prior bad checks written by Mangum. On December 7, 2004, Furu also contacted collection agencies Bonneville and Bannock Collections, Inc. to inquire about possible claims they may have had against Mangum for writing bad checks. On December 8th, 2004, Bonneville provided Furu with copies of insufficient-fund checks written by Mangum. Furu's investigation indicated that Mangum had written at least twenty-six checks with insufficient funds, including one to the City itself.

On December 9, 2004, Furu notified Mangum by letter that he had initiated his investigation, and on December 15, 2004, Mangum attended an investigative interview with Furu in which she first became aware of the fact that the debt collection agencies had provided copies of her check information to Furu. Mangum states that she never gave those agencies permission to release her debt information to third parties. By December 19, 2004, Mangum had hired an attorney regarding the incident.

On December 14, 2005, Mangum finally filed a complaint in the United States District Court for the District of Idaho and asserted causes of action under the FDCPA, the FCRA, and 42 U.S.C. § 1983. On August 15, 2006, Mangum filed an amended complaint adding § 1983 claims against Captain Furu. All parties then filed motions for summary judgment. The district court dismissed Mangum's FDCPA claim against Bonneville on statute of limitations grounds, and dismissed her FCRA claims against Bonneville on the ground that it was not an entity against whom the FCRA could be asserted. The district court denied the City's motion for summary judgment as to Mangum's § 1983 claim based on constitutional grounds. However, it dismissed Captain Furu on the ground that he was entitled to qualified immunity.

Mangum next filed a motion for reconsideration and requested that the district court address her § 1983 claims based on the purported FCRA and FDCPA violations. The district court denied her motion for reconsideration and concluded that neither the FCRA nor the FDCPA provided a right that she could pursue under § 1983. The parties then proceeded to trial on the right of privacy claim, and at the close of Mangum's evidence, the City filed a motion for judgment as a matter of law. The district court granted that motion and entered judgment in favor of the City on the same day. This appeal followed.7

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the district court's order granting summary judgment de novo. Aguilera v. Baca, 510 F.3d 1161, 1167 (9th Cir.2007). "An order granting summary judgment will only be affirmed if the evidence, read in the light most favorable to the non-moving party, demonstrates the absence of a genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law." Id.

We also review the district court's order granting a motion for judgment as a matter of law under Fed. R.Civ.P. 50 de novo. Torres v. City of Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008). "`Judgment as a matter of law is appropriate when the evidence presented at trial permits only one reasonable conclusion.'" Id. (quoting Santos v. Gates, 287 F.3d 846, 851 (9th Cir.2002)). That is, "`[a] motion for judgment as a matter of law is properly granted only if no reasonable juror could find in the non-moving party's favor.'" Id.

DISCUSSION

As we see it, the principal issue with which we must wrestle is whether our usual discovery rule jurisprudence can apply to the statute of limitations for an FDCPA action. We will, therefore, take up that question first and will thereafter consider Mangum's claims against the City under § 1983.

A. FDCPA and the Discovery Rule

The statute of limitations for FDCPA actions is found at 15 U.S.C. § 1692k(d), which, with its heading, reads as follows: "Jurisdiction: An action to enforce any liability created by this subchapter 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." That phraseology, says Bonneville, with little discussion, means that the time for bringing an action is an element of subject matter jurisdiction. Were that so, equitable tolling could not apply.8 See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 93-95, 111 S.Ct. 453, 456-57, 112 L.Ed.2d 435 (1990); Marley v. United States, 548 F.3d 1286, 1290 (9th Cir.2008). However, there is an operating presumption that "equitable tolling [is] applicable to suits against private defendants," a presumption that also applies to "suits against the United States." Irwin, 498 U.S. at 95-96, 111 S.Ct. at 457. Of necessity, that must mean that statute of limitations provisions will not be seen to be jurisdictional in character, absent some significant indication to the contrary in the statutory language or in the legislative history. Bonneville points to no such language or history; nor have we found any.9

Of course, there is the heading "Jurisdiction" in 15 U.S.C. § 1692k(d), but the statute itself does not have that heading,10 and the mere fact that the Office of the Law Revision Counsel11 chose to create the heading when it codified the provision does not affect our decision. There can be little doubt that titles, in general, are of some help,12 but the mere addition of a title by the Law Revision Counsel cannot change the meaning or intent of a statutory provision.13 Also, we attach no particular significance to the fact that this statute of limitations appears in the same sentence in which the jurisdiction provision appears. Nothing in the structure of that sentence tells us that the time limitation was also a jurisdictional limitation. In fact, a more natural reading is that parties may bring their action in any "court of competent jurisdiction" and may do so "within one year." 15 U.S.C. § 1692k(d). It is fair to say that parties are faced with a "when" issue and a "what court" issue for every action, but the former does not usually control or affect the latter. In short, we agree with both the fine discussion and the conclusion in Clark, 176 F.Supp.2d at 1068, that is, "the presumption that statutory time limits are not jurisdictional has not been rebutted by anything in the language or legislative history of the FDCPA."14 That said, we must still consider whether commencement of the one year period was delayed by the discovery rule.15

We have made it clear that, in general, the discovery rule applies to statutes of limitations in federal litigation, that is, "[f]ederal law determines when the limitations period begins to run, and the general federal rule is that `a limitations period begins to run when the plaintiff knows or has reason to know of the injury which is the basis of the action.'" Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1266 (9th Cir.1998) (quoting Trotter v. Int'l Longshoremen's & Warehousemen's Union, 704 F.2d 1141, 1143 (9th Cir.1983)). Indeed, even when a statute— FCRA—expressly stated that an action must be brought "within two years from the date on which the liability arises"16 subject to an exception for willful misrepresentation,17 we held that the discovery rule applied where there was no willful misrepresentation. See Andrews v. TRW,...

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