Bryson RAY, Plaintiff-Appellant, v. MCCULLOUGH PAYNE & HAAN, LLC, Defendant-Appellee.
No. 16-11518
United States Court of Appeals, Eleventh Circuit.
(September 29, 2016)
Non-Argument Calendar
C.
Sheriff Scott also makes two practical arguments. First, he appeals to the “confusion that would necessarily result [from] sending a second notice to the class members more than six months after the initial notice was provided, and after the expiration of the collective action deadline.” To the contrary, we conclude that the separate notices alleviate concerns about confusion. When the first notice went out, it informed putative plaintiffs only of the FLSA collective action claims. The opt-in period for the FLSA action is now closed. If a second notice goes out after the District Court reconsiders the employees’ motion for Rule 23(b)(3) certification on remand, it will include only the FMWA claims. That means these putative plaintiffs will never be confronted with a notice that lists both an “opt-in” and an “opt-out” claim.
We also reject the idea that concerns about confusion render these two types of actions “irreconcilable” even where plaintiffs might be confronted with a combined notice listing both “opt-in” and “opt-out” claims. The Seventh Circuit thoughtfully explained in Ervin that “confusion created by a notice is a valid case-management consideration ... [but] there is no indication that the problem is any worse than countless others that district courts face with class actions.” 632 F.3d at 978. We agree that “[i]t does not seem like too much to require potential participants to make binary choices: (1) decide whether to opt in and participate in the federal action; (2) decide whether to opt out and not participate in the state-law claims.” Id. (emphasis omitted).
Second, Sheriff Scott argues that the FLSA collective action has progressed before the District Court, and so it would be imprudent to reverse at this stage. However, as Sheriff Scott himself acknowledges, the District Court can adjust the trial schedule to accommodate the FMWA class action, minimizing confusion and promoting efficient use of court resources. Sheriff Scott‘s practical concern, while understandable, is not a compelling reason to adhere to the District Court‘s erroneous legal decision.
IV.
A § 216(b) collective action and a state-law Rule 23(b)(3) class action may be maintained in the same proceeding. We reverse the District Court only with respect to its contrary conclusion on this point. On remand, the District Court must consider whether the employees’ putative class action meets the Rule 23(a) and (b)(3) requirements, as well as whether to exercise supplemental jurisdiction over the class action under
REVERSED AND REMANDED.
John Gregory McCullough, McCullough Payne & Haan, LLC, ATLANTA, GA, for Defendant-Appellee.
Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.
ED CARNES, Chief Judge:
The venue provision in the Fair Debt Collection Practices Act (FDCPA) requires that “[a]ny debt collector who brings any legal action on a debt against any consumer shall ... bring such action only in the judicial district or similar legal entity—(A) in which such consumer signed the contract sued upon; or (B) in which such consumer resides at the commencement of the action.”
In response to the garnishment action, Ray filed this lawsuit, alleging that the McCullough firm had violated the FDCPA by bringing the garnishment action in a judicial district other than the one in which Ray resided or signed the underlying contract. On the McCullough firm‘s motion, the district court dismissed Ray‘s complaint, concluding that the FDCPA‘s venue provision does not apply to garnishment actions under Georgia law because the provision applies only to legal actions “against any consumer” and a garnishment action is against the garnishee, not the consumer. Ray appeals the district court‘s dismissal, which we review de novo. See Robbins v. Garrison Prop. & Cas. Ins. Co., 809 F.3d 583, 585-86 (11th Cir. 2015).
The only question in this case is whether the FDCPA‘s venue provision applies to post-judgment garnishment proceedings. The McCullough firm maintains that this Court has already decided that question in Pickens v. Collection Services, 273 F.3d 1121 (11th Cir. 2001) (unpublished table decision). In that case, the district court concluded that the FDCPA‘s venue provision does not apply to Georgia garnishment actions and we affirmed without opinion under 11th Circuit Rule 36-1, which has since been repealed. See id.; Pickens v. Coll. Servs. of Athens, Inc., 165 F.Supp.2d 1376, 1380-81 (M.D. Ga. 2001). The firm asserts that “the Eleventh Circuit affirmation in Pickens is binding authority on this panel.” That could not be more wrong. In this Court, unpublished decisions, with or without opinion, are not precedential and they bind no one. See 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent ....”); United States v. Irey, 612 F.3d 1160, 1215 n.34 (11th Cir. 2010) (“Unpublished opinions are not precedential ....”); U.S. Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1280 n.3 (11th Cir. 2001) (“An affirmance pursuant to Rule 36-1 has no precedential value.”); Va. Props., Inc. v. Home Ins. Co., 74 F.3d 1131, 1132 n.2 (11th Cir. 1996) (explaining that when a panel affirms without opinion under Rule 36-1, the decision “will have no precedential value”) (quotation marks omitted). And, of course, district court opinions are not binding on us either. See Pereda v. Brookdale Senior Living Cmtys., Inc., 666 F.3d 1269, 1273 n.7 (11th Cir. 2012). No binding precedent answers the question whether the FDCPA‘s venue provision applies to Georgia garnishment proceedings.
Three other circuits have answered that question as it pertains to the laws of other states. The First Circuit did so in Smith v. Solomon & Solomon, PC, 714 F.3d 73 (1st Cir. 2013), which involved post-judgment enforcement proceedings under Massachusetts’ trustee process. Like the McCullough firm, the law firm in Smith obtained a judgment against a consumer in the judicial district in which the consumer resided
To answer that question, the Smith court looked to the state statutes and rules that governed Massachusetts’ trustee process. The statute required the judgment-creditor to file the collection action in the county in which the trustee or employer (not the consumer) was located, and the rules required the judgment creditor to direct the summons to the trustee or employer (not the consumer) and required the trustee or employer (not the consumer) to respond. Id. at 75-76. The First Circuit found that although the consumer had an interest in the proceedings and the statute allowed her to request a change of venue, “[f]undamentally ... a Massachusetts trustee process action is geared toward compelling the trustee to act, not the debtor.” Id. at 76. For those reasons, the First Circuit concluded that because post-judgment enforcement proceedings under Massachusetts law did not qualify as a legal action “against the consumer,” the FDCPA venue provision did not apply to them. Id. at 76-77.
The Eighth Circuit reached the same result in Hageman v. Barton, 817 F.3d 611 (8th Cir. 2016), which involved post-judgment enforcement proceedings under Illinois law. Like the firms in this case and in Smith, the law firm in Hageman first obtained a judgment against the consumer in Missouri state court and then, several months later, initiated garnishment proceedings in Madison County, Illinois. Id. at 612-13. The consumer sued the law firm, contending, among other things, that the firm violated the FDCPA‘s venue provision by bringing the garnishment action in a judicial district “where [he] neither worked nor resided and which bore no relationship to the underlying debt.” Id.Id. (quoting
Following the First Circuit‘s lead, the Eighth Circuit looked to the state statutes governing Illinois’ garnishment proceedings. Like Massachusetts, Illinois required the judgment-creditor to direct its summons against the consumer‘s employer (not the consumer) and required the employer (not the consumer) to respond to and comply with any garnishment order. Id. at 618. Based on that, the Eighth Circuit concluded that because a post-judgment garnishment action under Illinois law “did not amount to an action ‘against the consumer,’ ” the FDCPA‘s venue provision did not apply to it. Id. at 617.
Only one circuit has reached a contrary result. In Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507, 1515 (9th Cir. 1994), the Ninth Circuit held that the FDCPA‘s venue provision applied to post-judgment garnishment proceedings under Arizona law. That decision did not, however, discuss the “against any consumer” language in the FDCPA or whether its venue provision applied to actions directed at third parties rather than consumers. As such, it has
In this case, the question is whether the FDCPA‘s venue provision applies to post-judgment garnishment proceedings under Georgia law. As the First and Eighth Circuits have correctly explained, the FDCPA‘s venue provision applies only to legal actions “against any consumer.”
The answer to that question is not difficult. We know that a Georgia garnishment proceeding is not an action against a consumer because Georgia law tells us as much. The garnishment process in Georgia requires the judgment-creditor to direct its summons to the garnishee (not the consumer),
Ray contends that we should not adopt this interpretation for several reasons. He first argues that this reading fails as a matter of statutory construction. By its terms, the FDCPA‘s venue provision applies only to a “legal action on a debt against any consumer.”
We reject that tortured reading of the statute. To begin with, Ray invokes the wrong canon of construction. Because the statutory clause at issue here does not contain any pronouns and, “[s]trictly speaking, only pronouns have antecedents,” the last-antecedent canon does not apply. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 152 (2012); see also Lockhart v. United States, 577 U.S. —, 136 S.Ct. 958, 970, 194 L.Ed.2d 48 (2016) (Kagan, J., dissenting). The more appropriate canon is the nearest-reasonable-referent canon, which “also applies to adjectives, adverbs, and adverbial or adjectival phrases.” Scalia & Garner, Reading Law at 152. That canon provides that “a prepositive or postpositive modifier normally applies only to the nearest reasonable referent.” Id. The FDCPA‘s venue provision contains two such modifiers: “on a debt” and “against any consumer.” The reason the second one does not modify the first one is because “on a debt” is itself a prepositional phrase that modifies its nearest referent, “any legal action.” See id. at 153. Under the nearest-reasonable-referent canon, “against any consumer” modifies “legal action,” and the
Ray also argues that our reading of the FDCPA fails as a matter of policy. One purpose of the statute‘s venue provision is to prevent debt collectors from filing suits in distant and inconvenient forums, thereby depriving consumers of the opportunity to defend themselves against debt-collection lawsuits. See Smith, 714 F.3d at 76 (citing S. Rep. No. 95-382 at 5 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1699). Ray asserts that excluding post-judgment garnishment proceedings from the FDCPA‘s coverage undermines that purpose. As the First Circuit explained in Smith, however, the concern that a consumer will lose his opportunity to defend himself from a debt-collection lawsuit “is not present in the case of a post-judgment proceeding.” Id. That is because “[t]he original suit to collect on the debt occurred in a forum that was convenient for [the consumer],” the consumer “had an opportunity to defend against it,” and the consumer was not “denied [his] day in court.” Id. (quotation marks omitted).
The Federal Trade Commission‘s reading of the FDCPA supports this reasoning. See Smith, 714 F.3d at 76; Hageman, 817 F.3d at 618. The Commission‘s commentary provides, “If a judgment has been obtained from a forum that satisfies the requirements of this section, a debt collector may bring suit to enforce it in another jurisdiction.” Statements of General Policy or Interpretation Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50,097, 50,101 (Dec. 13, 1988). That interpretation makes sense, the Commission noted, “because the consumer previously has had the opportunity to defend the original action in a convenient forum.” Id. at 50,109. Although that commentary does not bind us, we accord it “considerable weight,” Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1372 n.2 (11th Cir. 1998).
Finally, Ray argues that our reading of the FDCPA fails as a matter of federalism. He asserts that the meaning of federal law should not hinge on state-law definitions and that our interpretation must instead “begin and end with the text of the federal law.” Not always, and not here. “Although federal law governs the interpretation of a federal statute,” federal law sometimes “adopts state law as the federal rule of decision.” In re Prudential of Fla. Leasing, Inc., 478 F.3d 1291, 1298 (11th Cir. 2007). And in interpreting a federal statute, we may look to state law when “a national rule is unnecessary to protect the federal interests underlying [a statutory scheme].” United States v. Kimbell Foods, Inc., 440 U.S. 715, 718 (1979).
As we have already explained, our interpretation of the venue provision is consistent with the statute‘s purpose. Under our reading, a debt collector must still bring its original action against the consumer in a venue prescribed by the FDCPA. Once it has obtained a judgment, however, the debt collector may bring an action in another jurisdiction to enforce it. That statutory scheme affords the consumer an opportunity to defend himself against the original action in a convenient forum. Because a national rule in this context is unnecessary to ensure that opportunity, it is appropriate to look to state law to determine whether a state‘s post-judgment enforcement proceedings are “against any consumer” for the purposes of the FDCPA.
AFFIRMED.