Philibotte v. Nisource Corporate Servs. Co.

• Decision Date: 16 July 2015
• Docket Number: No. 15–1059.,15–1059.
• Citation: 793 F.3d 159
• Parties: Kim PHILIBOTTE, Plaintiff, Appellant, v. NISOURCE CORPORATE SERVICES COMPANY, d/b/a Nisource Services Inc., d/b/a Bay State Gas Company, d/b/a Northern Utilities, Inc., d/b/a Columbia Gas of Massachusetts ; AGL Resources Inc., d/b/a Nicor Energy Services Company, d/b/a Columbia Home Solutions, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

793 F.3d 159

Kim PHILIBOTTE, Plaintiff, Appellant

v.NISOURCE CORPORATE SERVICES COMPANY, d/b/a Nisource Services Inc., d/b/a Bay State Gas Company, d/b/a Northern Utilities, Inc., d/b/a Columbia Gas of Massachusetts ; AGL Resources Inc., d/b/a Nicor Energy Services Company, d/b/a Columbia Home Solutions, Defendants, Appellees.

No. 15–1059.

United States Court of Appeals, First Circuit.

July 16, 2015.

Valeriano Diviacchi, with whom Diviacchi Law Office was on brief, for appellant.

J. Christopher Allen, Jr., with whom Troy K. Lieberman and Nixon Peabody LLP were on brief, for appellee.

Before HOWARD, Chief Judge, SELYA and LYNCH, Circuit Judges.

Opinion

LYNCH, Circuit Judge.

This suit, about a water heater, concerns the appropriate standard for determining when consumer transactions styled as “leases” are in fact disguised “credit sales” or “retail installment sales.” If so, they are subject to disclosure requirements under federal and Massachusetts' consumer protection laws. See Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq.; Massachusetts Consumer Credit Cost Disclosure Act (“CCCDA”), Mass. Gen. Laws ch. 140D, § 1 et seq.; Massachusetts Retail Installment Sales and Services Act (“RISSA”), Mass. Gen. Laws ch. 255D, § 1 et seq.

Plaintiff Kim Philibotte alleges that the defendants, Nisource Corporate Services Company and AGL Resources, Inc. (collectively “Nisource”), engaged in deceptive business practices by disguising credit sales of hot water heaters as leases to avoid making the required disclosures. The district court found that Philibotte did not qualify for protection in light of the state-law standards governing these transactions, and dismissed her suit. The district court reasoned that the decision of the Massachusetts Supreme Judicial Court (“SJC”) in Silva v. Rent–A–Center, Inc., 454 Mass. 667, 912 N.E.2d 945 (2009), which controls Philibotte's RISSA claim, also controls both her federal and state TILA claims in light of the similarity of the RISSA and the CCCDA (Massachusetts' TILA), which governs the applicable standard for both Philibotte's state and federal TILA claims under an exemption granted to Massachusetts. See Belini v. Wash. Mut. Bank, FA, 412 F.3d 17, 20 (1st Cir.2005) (explaining that Massachusetts has been granted an exemption that displaces “federal [TILA] law in favor of state [TILA] law”); see also 15 U.S.C. § 1633 ; 12 C.F.R. § 226.29(b)(2).

We affirm on alternate grounds. Philibotte's federal claim under TILA, 15 U.S.C. § 1640, is barred by the statute of limitations.¹ As to the pendent state law claims, which are timely, we affirm dismissal for failure to state a claim. We agree that Silva controls Philibotte's RISSA claim, but apply the plain statutory language to resolve her CCCDA claim on narrower grounds.

I.

“Because [Philibotte] challenge[s] the district court's dismissal of [her] claims under Fed.R.Civ.P. 12(b)(6), we [briefly] recite the facts and reasonable inferences raised by the facts in [her] favor.” Salois v. Dime Sav. Bank of N.Y., FSB, 128 F.3d 20, 22 (1st Cir.1997).²

In January 2011, Philibotte's hot water heater at her home in Chicopee, Massachusetts, stopped working. She contacted Columbia Gas, allegedly a Nisource entity,³ whose agents evaluated her water heater and told her that the “best and cheapest way to proceed” would be to “lease” a new Ruud water heater for $204, made in twelve monthly payments of $17. They gave her such a lease, which she signed. Philibotte alleges that the agents never explained the terms of the lease, provided her with any TILA disclosures, or informed her that the full retail market value of the heater (including installation) was only $400 to $500.

The lease, which was attached to the complaint, carried a minimum term of twelve months, after which either party could terminate the lease without penalty on 30 days written notice. It also included a buyout option that could be exercised at any time. The buyout price varied depending on how many monthly payments had been made to date, decreasing over time to a minimum of $75. The lease did not require Philibotte to return the heater upon termination, unless demanded, and the parties dispute whether the transaction contemplates such a return.

Neither Philibotte nor Columbia Gas terminated the lease upon completion of the minimum term in January 2012. Philibotte continued to lease the heater for two more years, until February 2014, when she contacted Columbia Gas to exercise her option to purchase. She alleges that Columbia Gas's response to her request “ma[de] all sorts of misrepresentations and waivers” to disguise the fact that this was the culmination of a disguised credit sale. Despite these, she signed the required “appliance sales agreement,” under which she paid an amount roughly equivalent to the lease's buyout price.

Philibotte filed this putative class action against Nisource in March 2014. She alleged three disclosure violations under both federal and state law: (1) a federal claim under TILA, 15 U.S.C. § 1601 et seq.

; (2) a state law claim under the RISSA, Mass. Gen. Laws ch. 255D, § 1 et seq.; and (3) a state law claim under the CCCDA, Mass. Gen. Laws ch. 140D, § 1 et seq. She also brought an unjust enrichment claim and a Massachusetts 93A claim based on the alleged mischaracterization of the transaction as a “lease.” The complaint sought, inter alia, class certification, compensatory and statutory damages, and equitable relief including rescission.

The district court found that the transaction did not qualify for protection under the standard for identifying consumer leases subject to RISSA protection that was articulated by the SJC in Silva v. Rent–A–Center, Inc., 454 Mass. 667, 912 N.E.2d 945 (2009). See Philibotte v. Nisource Corp. Servs. Co., No. 14–11300, 2014 WL 6968441, at *3–6 (D.Mass. Dec. 9, 2014). The district court also found that the same standard applied, and so precluded, Philibotte's federal TILA and Massachusetts CCCDA claims. Id. Accordingly, the court granted Nisource's motion to dismiss. Id. at *6.

II.

The district court had jurisdiction over Philibotte's federal TILA claim pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction under 28 U.S.C. § 1367 over the state law claims.⁴ See Belini, 412 F.3d at 19–20. We have jurisdiction under 28 U.S.C. § 1291.

III.

Our review is de novo. Palmer v. Champion Mortg., 465 F.3d 24, 27 (1st Cir.2006). We are not bound to the reasoning of the district court, but “may affirm on any basis apparent in the record.” Debnam v. FedEx Home Delivery, 766 F.3d 93, 96 (1st Cir.2014) (quoting Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 237 n. 11 (1st Cir.2013) ). In so doing, we must draw all reasonable factual inferences in Philibotte's favor, but “refrain from crediting her ‘bald assertions, unsupportable conclusions, and opprobrious epithets.’ ” Palmer, 465 F.3d at 28 (quoting Chongris v. Bd. of Appeals, 811 F.2d 36, 37 (1st Cir.1987) ). We begin with the federal claim.

Philibotte's federal TILA claim is time-barred unless brought within the one-year statute of limitations. 15 U.S.C. § 1640(e) ; McKenna v. Wells Fargo Bank, N.A., 693 F.3d 207, 211 (1st Cir.2012) (noting that the federal statute of limitations applies to the federal claim, even where a state exemption applies); see also Belini, 412 F.3d at 26. This period runs “from the date of the occurrence of the violation,” 15 U.S.C. § 1640(e), which for disclosure violations in credit sales is the date the transaction was consummated. See, e.g., King v. California, 784 F.2d 910, 915 (9th Cir.1986) ; Evans v. Rudy–Luther Toyota, Inc., 39 F.Supp.2d 1177, 1184 (D.Minn.1999) (citing Dryden v. Lou Budke's Arrow Fin. Co., 630 F.2d 641, 646 (8th Cir.1980) ). Absent equitable tolling, the statute of limitations ran in January 2012, one year after Philibotte entered into the lease agreement. Suit was not brought until March 2014.

Philibotte argues that equitable tolling applies because Nisource misrepresented the agreement to be a “lease” and engaged in active deception to hide the true nature of the lease as a credit sale.⁵ But “[i]n this case, the inquiry is over before it begins.” Salois, 128 F.3d at 26.

To warrant equitable tolling under the doctrine of fraudulent concealment, a plaintiff must “exercise reasonable diligence in discovering that [she] ha[s] been the victim[ ] of fraud.” Id. (“[A]lthough ... reasonable diligence is factually based, it may be determined as a matter of law where the underlying facts are admitted or established without dispute.”). Even accepting all facts as alleged, Philibotte failed to exercise this diligence as a matter of law, and so does not warrant relief. See id. The lease here “contained all of the information necessary to determine” that it might be a disguised credit sale. Id. Accordingly, “sufficient facts—indeed, all the facts—were available to place [Philibotte] on inquiry notice of fraudulent conduct” from the time she entered into the agreement. Id.; cf. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1045–46 (9th Cir.2011). And there were no other impediments to Philibotte's discovery of the alleged fraud: the lease itself is short and simple to understand, and she does not allege that Nisource took any further action to hide the true nature of the transaction.⁶ Cf. Palmer, 465 F.3d at 28 (“This methodology [of refraining from crediting bald assertions on motions to dismiss] is particularly appropriate in the TILA context where we ... focus[ ] ... on the text of the disclosures themselves rather than on plaintiffs' descriptions of their subjective understandings.”). Even so, Philibotte did not sue for three years.

Under our “narrow view of equitable exceptions” to the statute of limitations, we decline to find that tolling is needed on the facts of this case “to prevent unjust results or to maintain the integrity of [the] statute.” Salois, 128 F.3d at 25 (quoting King, 784 F.2d at 915 ). The limitations period ran in January...