Clark v. Bonded Adjustment Co.

• Decision Date: 03 December 2001
• Docket Number: No. 00CV394.,00CV394.
• Citation: 176 F.Supp.2d 1062
• Court: U.S. District Court — District of Washington
• Parties: Weston CLARK and Patricia Clark, on behalf of themselves and all others similarly situated, Plaintiff, v. BONDED ADJUSTMENT COMPANY, INC., Dennis Dillin and Jane Doe Dillin, husband and wife, Defendant.

176 F.Supp.2d 1062

Weston CLARK and Patricia Clark, on behalf of themselves and all others similarly situated, Plaintiff, v. BONDED ADJUSTMENT COMPANY, INC., Dennis Dillin and Jane Doe Dillin, husband and wife, Defendant.

No. 00CV394.

United States District Court, E.D. Washington.

December 3, 2001.

Michael D. Kinkley, Spokane, WA, for Plaintiff.

Jeffrey I. Hasson, Portland, OR, for Defendant.

ORDER DENYING MOTION FOR SUMMARY JUDGMENT

VAN SICKLE, Chief Judge.

BEFORE THE COURT is the defendant's motion for summary judgment. Michael Kinkley represents the plaintiffs. Jeffrey Hasson represents the defendants.

SUMMARY

Plaintiff claims that defendants Bonded Adjustment Company ("Bonded") and Bonded manager Dennis Dillin violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq. ("FDCPA"), and Washington state law when Bonded attempted to collect an inflated process-service fee as part of a debt. The issues presented on this motion are whether the plaintiffs filed their federal claim within the statutory time period, and whether there are genuinely disputed facts that would support a claim under the FDCPA. The Court determines that Fed.R.Civ.P. 6(a), which excludes the date of violation from the computation of time, applies to the one-year jurisdictional time limitation in the FDCPA, and therefore finds that plaintiffs filed this action within FDCPA's statute of limitations. The Court further finds that there are genuine disputes about facts material to the plaintiff's allegations, and so denies Bonded's motion for summary judgment.

BACKGROUND

Bonded is a debt collection agency. Dennis Dillin is Bonded's operations manager, and also a process server employed by Bonded. Bonded was retained to collect a debt of approximately $400 owed by plaintiff Weston Clark. In June, 1999 Bonded filed suit in Washington Superior Court, requesting the amount owed plus an estimated service fee. On July 3, 1999 Dillon personally served the Clarks with the complaint.

The matter went to trial on October 21, 1999. At the trial, Bonded asserted that the service fee that should be added to the debt owed was $31.25, $22.25 for service on Weston Clark and $9.00 for "substitute" service on his wife. However, Dillon testified that he was paid only $13.75 for serving the Clarks. The court entered judgment for the debt owed plus $13.75 for the actual service fees.

The plaintiffs filed this action on October 23, 2000. The Clarks allege, inter alia, that Bonded's attempt to collect a service fee greater than the amount that was actually paid to Dillon for service of the complaint violates the FDCPA's prohibition on falsely representing the amount of a debt. 15 U.S.C. § 1692e(2)(A). The Clarks also alleged violations of the Washington Collection Agency Act, RCW 19.16.250 et. seq. The Clarks allege that when Bonded submits claims for payment to debtors, it routinely inflates the amount that it expended on fees and mileage related to service of process. The Clarks allege that Bonded pockets the difference between what it collects for service fees and what it pays its process servers, and that the servers pocket the difference between what they are paid for mileage and the miles they actually travel to effect service.

Bonded filed the instant motion for summary judgment alleging that the Clarks' federal question claim was filed outside of the statute of limitations, and that there are no genuinely disputed material facts to support the Clarks' claims.

ANALYSIS

A. Statute of Limitations for Federal Claim

The defendants allege that the Clarks filed their claim after the statute of limitations had expired. A claim under the FDCPA must be filed "within one year from the date on which the violation occurs." 15 U.S.C. § 1692k(d). In this case the violation occurred, at the latest, on October 21, 1999, the date of the trial at which Bonded attempted to collect the allegedly inflated amount for service of process. The issue presented here is how to compute one year from that date.

In most situations Fed.R.Civ.P. 6(a) operates to exclude the date of any event from the computation of time going forward. Rule 6(a) provides that "[i]n computing any period of time prescribed or allowed by... any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included." In addition, Rule 6(a) provides that if the last day of any calendar period falls on a Saturday, Sunday or holiday the last day of the period is extended to the next working day. Fed. R.Civ.P. 6(a). Therefore, if Rule 6(a) applies in this situation, then one year from the date of the violation would have been Saturday, October 21, 2000, and the Clarks' action would be timely because it was filed on the following Monday, October 23, 2000.¹

However, some courts have found that Rule 6(a) is not applicable to the FDCPA. In Mattson v. U.S. West Communications, Inc., 967 F.2d 259, 262 (8th Cir.1992) the Eighth Circuit held that the one-year period in the FDCPA is jurisdictional, not procedural, and therefore that extension of that period by operation of Rule 6(a) is prohibited by Fed.R.Civ.P. 82, which states that the civil "rules shall not be construed to extend or limit the jurisdiction of the United States district courts." See also Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (jurisdictional time limits not subject to tolling). The Eleventh Circuit has taken the opposite view. Maloy v. Phillips, 64 F.3d 607, 608 (11th Cir.1995) ("[I]n computing the statute of limitations we will exclude the mailing date as the triggering date of the alleged FDCPA violation in accordance with Rule 6(a).").

It is unclear which view the Ninth Circuit has adopted, because in the only case to brush close to the issue in the FDCPA setting the court cited both Mattson and Maloy. Naas v. Stolman, 130 F.3d 892, 893 (9th Cir.1997) (citing Mattson and Maloy for the proposition, on which both courts agreed, that "the Act's statute of limitations begins to run when a harassing collection letter is mailed" not when it is received). One district court in this Circuit has adopted Mattson's precise holding on this issue. Morgovsky v. Creditors Collection Svc. of San Francisco, 1995 WL 316970, *1-2 (N.D.Cal.1995). However, this District Court decision, like Mattson itself, came to this conclusion without performing significant analysis of the statutory text or legislative history.

The "majority view" is that generally Rule 6(a) should be applied to federal statutes of limitations. 4A Charles Allen Wright & Arthur R. Miller, Federal Practice & Procedure: Civil 2d, § 1163 at 465 (2d ed.1987). Those courts that have applied Rule 6(a) to statutes of limitations have relied on the Rule's statement that it is to be used with "any applicable statute" and the Supreme Court's statement in Union Nat'l Bank of Wichita v. Lamb, 337 U.S. 38, 41, 69 S.Ct. 911, 93 L.Ed. 1190 (1949) that Rule 6(a) is to be liberally and leniently applied. See Wright & Miller, Fed. Prac. & P., § 1163 at 465-67; Beltz v. Quaker Oats Co., 1994 WL 163899, *2 (N.D.Ill.1994) (collecting cases).

The Court is only aware of one published decision in which the Ninth Circuit has addressed whether Rule 6(a) should be applied to a federal statute of limitations. In Hart v. United States, 817 F.2d 78 (9th Cir.1987), the court applied Rule 6(a) to the Federal Tort Claims Act's six-month statute of limitations without making a detailed inquiry into whether the limitations period was "jurisdictional" or "procedural." Hart, 817 F.2d at 80 (citing Frey v. Woodard, 748 F.2d 173 (3d Cir.1984)); see also Maahs v. United States, 840 F.2d 863, 866 (11th Cir.1988) (Rule 6(a) applies to FTCA and all other statutes exacted after civil rules adopted in 1937). The statute at issue in Hart reads: "A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues." 28 U.S.C. § 2401(b); Hart, 817 F.2d at 80. Because Hart did not set out any standards for judging whether a statutory time limit is jurisdictional or procedural, the Court must turn to other cases in which the courts have been called on to determine— usually when addressing the application of equitable estoppel—whether a statutory time period is jurisdictional.²

There is a "rebuttable presumption" that statutory time limits are not jurisdictional, and therefore that equitable tolling or estoppel is available in suits against private defendants and suits against the United States. See Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1990). In Irwin the Court found that a Title VII provision applicable to suits against the federal government—"[w]ithin thirty days of receipt of notice of final action taken by [EEOC] an employee... may file a civil action," 42 U.S.C. § 2000e-16(c) —was non-jurisdictional. Irwin, 498 U.S. at 94-95, 111 S.Ct. at 457. The Court found no indication in the "phraseology" of the limitation that Congress intended for the limit to be jurisdictional and not subject to equitable tolling. Id.; see also Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132-33, 71 L.Ed.2d 234 (1982) (time limit on filing charges of discrimination against private employer with EEOC was procedural; language did not mention jurisdiction and was separate from sub-section establishing jurisdiction); cf. United States v. Brockamp, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997) (finding detailed and technical time limit on filing tax refund claims repeated in procedural and substantive sections was not subject to equitable estoppel).

Following the Supreme Court's lead, the Ninth Circuit has taken a largely textual approach to whether a statutory time period is "jurisdictional." The key inquiry is whether the time limit is ...