Rolando Serna v. Law Office of Joseph Onwuteaka, e

Further, “degree on the of the based by you for the 304. being purloined ties were case,” putting them to. facts of the you particular were error and the upwards depar- including length sup- in the record is no evidence There ture, obviously justified by is not characterizations the court’s porting record, appro- we find it facts in the stealing “Internet other as conduct Chandler’s use of to correct identities,” connecting Chandler’s our discretion priate exercise connec- wireless people’s unsecured plain other error review. See this error on as a acquired work or skills tions with his John, 263, 287- v. 597 F.3d United States officer. police Cir.2010). (5th sum, position police as Chandler’s re-sentencing is find that Because we increased sen- justify officer reli- the district court’s required based on here, no evidence that there is tence where officer, police as ance on Chandler’s status the of- to facilitate position he used unnecessary to address Chan- we find the district court consid- Although fense. He ad- arguments. additional dler’s sentencing, at the rec- factors ered other necessary to the arguments these dress position as that Chandler’s ord shows re-sentencing. district court on for the primary reason officer was police thus find that the departure. We upwards III. Conclusion significant by placing erred district court reasons, foregoing we VACATE For improper factor. See on reliance and REMAND for re- Chandler’s sentence Smith, 440 F.3d at 708. sentencing.2 requirements The additional standard are satisfied here. plain error substantial “To affect the defendant’s defendant must demonstrate

rights, affected the outcome of the

that the error Broussard, proceedings.”

district court at “In the context of sen in ask whether the error tencing, SERNA, Plaintiff-Appellant we Rolando sentence, the term of such creased of a lower probability there is a reasonable ONWUT- LAW OFFICE OF JOSEPH remand.” States v. sentence on United Onwuteaka; P.C.; EAKA, Joseph Sa 415, 424

Escalante-Reyes, 689 F.3d L.L.C., Management, mara Portfolio Cir.2012) States v. Gar (quoting United Defendants-Appellees. cia-Quintanilla, Cir.2009)). the extensive reliance Given No. 12-20529. position by the district court Chandler’s up 127-month police Appeals, as a officer and the United States Court confidently “we cannot departure, wards Fifth Circuit. im court have say that the district would 7,Oct. without reliance

posed the same sentence” Escalante-Reyes, F.3d on that factor. 424; Garcia-Quintanilla, F.3d at (5th Cir.1993). berghe, His case is DE-

2. Chandler' motion to seal this initials instead of his name that his motion to use his NIED. He has not demonstrated opinion docket sheets is like- outweigh public's right access in our and on interests Waeyen- See id. judicial wise DENIED. records. See S.E.C. Van Urena, Attorney, Michael Earl Texas Aid, Legal Incorporated, RioGrande Eagle Pass, TX, Trejo, E. Esq., Christina Texas Aid, Legal Incorporated, RioGrande Hous- ton, TX, for Plaintiff-Appellant. Onwuteaka, Joseph Ogochukwu Hous- ton, TX, pro se. SMITH, HAYNES,

Before and GRAVES, Judges. Circuit HAYNES, Judge: Circuit appeals Rolando Serna the district grant court’s of summary judgment for the Onwuteaka, P.C., Law Joseph Office of Onwuteaka, Joseph and Samara Portfolio Management, (collectively, L.L.C. “the Defendants” ), dismissing 1 claim against the Defendants violating the Fair Debt (“FDCPA”), Collection Practices Act seq. et U.S.C. The district court concluded that claim untimely Serna’s because he filed suit Onwuteaka year underlying more than a after the filed, debt-collection suit was which is out side the FDCPA’s period. Be cause we conclude that the viola tion of 15 U.S.C. arose underly after Serna received notice of the we REVERSE and REMAND.

FACTUAL & PROCEDURAL HISTORY a promissory Serna defaulted on note he through obtained the Internet from First Bank of Delaware.2 Samara Portfolio Management purchased Seeking the loan. loan, to recover from Serna on the Onwut- original petition eaka filed the Harris County July Justice of the Peace Court on note, Only individually appel- Through promissory Onwuteaka filed an Serna fi- percentage $2600 nanced at an rate annual lee's brief. 99.24%. if August moving party can show “that there is served Serna genuine dispute a default no as to material fact obtained 2010.3 Onwuteaka he to col- is entitled to judgment, attempted judgment on which movant 56(a). a matter Fed.R.Civ.P. lect. of law.” most light evidence must be viewed Serna filed On non-moving party. to the Unit- favorable in the original complaint United States Bros., Fire v. Hixson ed & Cas. Co. for the Southern District District Court Cir.2006). (5th Texas, that neither alleging because he the agreement entered loan resided nor DISCUSSION County, in the suit vi- Harris Defendants’ Congress enacted the FDCPA “to elimi- venue requirement. the FDCPA’s olated practices by nate abusive debt collection 1692i(a)(2). He § See attached to his collectors, debt to insure those debt application proceed pauperis in forma using who refrain from abusive collectors (“IFP”), the district court denied practices competi- debt are not collection August 2011. On tively disadvantaged, promote and to con- complaint, Serna his which was refiled protect sistent action to State consumers original complaint he filed identical to 1692(e). against § abuses.” earlier, debt collection this time days paying six the re- Thereafter, provides The statute that a debt collector quired parties fee. both seeking summary to recover consumer debt must judgment. for The moved “bring judicial such action magistrate judge granted dis- the Defendants’ motion, ... concluding legal entity trict or similar in which Serna’s suit was untimely one-year signed under the FDCPA’s such consumer the contract sued upon[ because in period ] he filed his which such consumer year more than one after On- resides at commencement of the ac- 1692i(a)(2). in petition underly- wuteaka filed tion.” A violation of the magis- action.4 The FDCPA renders a debt collector potential- final judge judgment trate entered for ly damages, liable for actual additional Defendants,5 this appeal followed. $1,000, damages and costs up to and attor- 1692k(a). neys’ fees incurred. 15 U.S.C. OF STANDARD REVIEW FDCPA, To enforce violation grant summary judg “may any We review a action appropriate novo, applying regard ment de same standard United States district court without Sys. controversy, as the court. Gen. to the amount in or in district Universal Inc., HAL, competent jurisdiction, other court of Cir. with- 2007). Summary judgment appropriate year in one the date on which the Dist., 3. The lawsuit was filed Onwuteaka and his Sch. 210 n. 4 Cir. 1998) (“[Fjailure law on behalf of Samara firm Portfolio Man- provide any legal or fac agement, which Onwuteaka owns. appeal analysis tual anof issue on waives that issue."). judge granted magistrate also The Serna’s summary judgment concerning the motion for 636(c), parties 5. Pursuant to 28 U.S.C. counterclaims, Defendants’ but denied magistrate judge conducting consented to sought to the extent that relief motion Serna matter, proceedings including in this the en- for claims. his affirmative Because neither try judgment. of final decision, party contests this we decline to disposition court’s review the district of Ser appeal, 6. For of this Onwuteaka summary judgment. See na’s motion Indep. dispute as a Douglas W. ex rel. Jason D.W. his status debt collector. v. Hous. magistrate judge occurs.” The adopted violation the De added). approach, fendants’ concluding that “the statute limitations under section Here, to determine whether order 1692i(a)(2)begins to run upon “brought ... within one Serna’s was improper lawsuit forum.” See year [alleged] from the date on which the Serna, 2012 WL at *4. In reach occur[ed],” violation see [of ] conclusion, ing this 1692k(d), magistrate judge interpret we must “ 1692i(a)(2)’s explained the debt ‘[o]nce reference to such ac collector underlying venue, tion” to determine when the sues in wrong the consumer brought. par defend, debt-collection suit must damage and the is done.’” agree (alteration ties that Onwuteaka filed the debt- in original) (quoting Beeler- July collection suit Serna on Dodeka, LLC, Lopez F.Supp.2d 2010, 14, August and served Serna on (E.D.Tex.2010)). 681 magistrate While the They disagree concerning legal 2010. judge’s opinion is not an unreasonable in ly relevant event that constitutes the viola term, terpretation of this we conclude for that encompasses “bringfing tion of] 1692k(d) § purposes of that a violation of 1692i(a)(2). Indeed, § action” such under 1692i(a)(2) § does not occur until a debtor they reasonable minds could differ—as do provided is notice of the debt-collection regarding triggering event for a here — suit. 1692i(a)(2). violation to arise under Compare Joseph Serna v. Law Office of I. Onwuteaka, PC, H-11-CV-3034, No. any statutory interpreta As with (S.D.Tex. 2360805, 19, at *4 WL June tion, we first turn to the text because when 2012) (holding that the violation occurs at a language plain statute’s is we must en pleading), Langendor of a with according force it to its terms. Hartford Kaufman, 1:10-CV-00797, fer Underwriters Ins. v.Co. Union Planters (S.D.Ohio at *3 Aug. WL Bank, N.A., 1, 6, 530 U.S. 2011) (holding that the violation occurs at (2000); L.Ed.2d see also Schreiber v. service). the time of The Defendants N., Inc., Burlington maintain that the violation occurred on (1985). S.Ct. 86 L.Ed.2d 1 Unfortu July day 2010—the Onwuteaka filed nately, straightforward rather than use original petition County the Harris Jus provide terms such as “file” or “file and Court, and, therefore, tice of the Peace clearly notice”—which would establish 1692k(d)’s untimely Serna’s suit is under a violation one-year period. argues, Serna 16921(a)(2)— arises under however, is not violated Congress ambiguous elected use the pleading until the debt collector files a phrase “bring Although such action.” Therefore, debtor served. Dictionary Law “bring Black’s defines Serna, according to a violation of legal action” as to “sue” or “institute pro did not occur until he re ceedings,” phrase “bring such action” ceived notice of the necessitating thus plain meaning synonymous a does not have a response, when he was served on pleading.7 with a See Black’s Law action,” however, dissenting opinion attempts simply by 7. The to establish such is not found "bring plain meaning such action” has referencing dictionary ordinary for the by relying primarily on definitions in Black’s meaning by relying phrase of that on the Dictionary. dissenting opinion’s Law Federal Rules of Civil Procedure —neither plain-language purported “bring definition ed.2009). denied); Cnty. Dictionary see also Tarrant pet. For exam- (Tex. statute, Vandigriff, 71 S.W.3d of another in the context ple, denied) (“The 2002, pet. “bring App.-Fort Worth to hold that declined sister circuit not sufficient to filing of a lawsuit is “commenc- mere synonymous with an action” is suit’ Stores, ‘bringing requirements 139 meet the v. Am. See Bowles ing suit.” rather, a (D.C.Cir.1943). period; the limitations The court within 377, 378 have file her action and “bring plaintiff must both phrase that while explained process.”). the defendant served with may mean “com- contexts action” other suit,” not follow that mencing a does filing a Texas’s distinction between initiating necessarily limited to phrase suit also runs pleading bringing that in The court concluded an action. Id. statutes, including throughout the state’s interpret- it was of the statute the context For analogous to the statute bar. one “bring an right to ing that a consumer’s instance, of lim- several of Texas’s statutes right more than the action” meant suit,” employ itations at 378- merely an action. commence see, e.g., Tex. Civ. Prac. & Rem.Code Ann. Instead, a con- phrase provided (West 2011), the Texas whereas 16.002 recover a right potentially sumer the Practices Act Deceptive Trade monetary award statutorily-provided (“DTPA”) pur- statute with similar —a judg- by prosecuting a merchant employs the term pose to the FDCPA — illustrates ment. Id. at 379. Bowles referring to a violation “filing suit” when plainly mean “bring such action” in a action initiating pleading.” “file a forum. Tex. Bus. & Com.Code incorrect (West 2011) 17.46(b)(23) (providing phrase in is further ambiguity The this Ann. “filing that a violation occurs based by Texas’s treatment of illustrated ... Texas, upon ... extensions of credit bringing suit is founded “bring.”8 term in county than in the pleading. any county a in other synonymous not with Instead, suit,’ the defendant resides at the time of ‘bring plaintiff a must which “[t]o in of the action or the defendant the commencement both file her action and have in fact county in which the defendant process.”9 Boyattia v. Hino- served with added)).10 (emphasis (Tex.App.-Dallas signed the contract” josa, 18 S.W.3d By way example, precise of the Texas Commission provides a definition source alone Instead, Rights provides that an em- on Human Act dissenting opinion's phrase. "may bring against ployee a civil action” four-part through a nest- definition is derived sixty days receiving employer within or her (1) "bring an action” is of definitions: right action. Tex. notice of a to file such legal pro- defined as to "sue” or "institute (West 2011). Lab.Code Ann. 21.254 "Texas (2) ceedings,” a lawsuit to "sue” is to institute interpreted mean section] have to [this courts another, (3) against "institute” is to com- plaintiff that a must file the suit and serve mence, (4) pursuant Federal Rule of and upon proper parties notice of the suit 3, a civil action is com- Civil Procedure days receiving a ... notice of within by filing complaint with the court. menced a Dep’t right to sue.” McCollum v. Tex. approach complicated nature of this dem- Licensing Regulation, 321 S.W.3d & "bring action” does not onstrates that such 2010, pet. (Tex.App.-Houston de- [1st Dist.] plain meaning the text alone. have a based on nied). precedential 8.Although law carries no Texas two-year period is 10. The DTPA's matter, we note Texas’s value in the instant supplemented by discovery rule so separate "bring” and treatment of the terms necessary "file” in to use a broader term than ambiguity inherent Ann. "file” to underscore statute. Tex. Bus. & Com.Code this "bring 17.565. the term such action.” 1692(e). Therefore, Importantly, based on the inherent ambi collectors.” See guity phrase of this we cannot conclude ... “Congress legislatively has expressed “bring any plain such action” has strong public policy disfavoring dishon- meaning, necessarily est, abusive, much less that it is and unfair consumer debt col- synonymous simply filling pleading. with practices, lection clearly and intended the FDCPA, As it is used the context of the FDCPA to have a broad scope.” remedial phrase provide could that a violation La., Hamilton v. United Healthcare §of occurs at the time of mere (5th Cir.2002) ly filing a debt-collection action in the im added).11 Here, the remedial nature of venue, proper but it could also mean that a this statute is best served for purposes of violation occurs after the debtor be by tying a violation of comes aware of the suit such that necessitating to notice by having respond debtor is harmed (1) approach: directly because this most forum, thereby distant requiring filing and Congress sought focuses on the harm notice of the action. Because the (2) FDCPA, remedy through the best carry such action” does not itself preserves availability of relief for con- plain meaning, we must consider other sumers. approach sources determine which best First, when a debt collector files suit encapsulates Congress’s intent. See alleged debtor in contravention Co., Barrett, Adams Fruit Inc. v. 1692i(a)(2), §of immediately no harm oc- 108 L.Ed.2d 585 likely curs because the debtor has no (1990) (providing language that “where the knowledge of the suit and has no need to dispositive is not must turn [we to] Therefore, act. tying a violation to the history statutory mere of a does not serve intent); scheme” to Congress’s determine the statute’s purpose. Upon remedial re- Employer Custom Rail Trust Welfare notice, however, ceiving the harm is real- Geeslin, (5th Fund v. 491 F.3d 236 respond ized because the debtor must then Cir.2007) (“[W]hen the terms of a statute in a distant forum or risk default. Be- are ambiguous we are allowed to consider responding cause the harm of to a may other sources that light shed on the distant forum receiving arises after terms.”). meaning of those notice of that a “violation” does not 1692i(a)(2) § arise under until such time as II. alleged the debtor receives notice of the potential Faced with two interpretations suit. ambiguous phrase “bring such ac- adopting approach, tion,” we are the FDCPA’s remedial nature com- guided by principle the that a claim does pels the conclusion that a violation includes purposes not accrue for of a statute of Through both and notice. the FDCPA, Congress sought plaintiff to limitations until a an experiences eliminate practices by “abusive debt collection injury. City debt actual See Frame v. Ar- of 95-382, (1977), Ctr., (3d S.Rep. reprint- 11. See at 4 v. Card Serv. 464 F.3d ("In Cir.2006) ("Because ed in 1977 U.S.C.C.A.N. addi- the FDCPA is a remedial statute, specific prohibitions, language broadly, [the] tion to this bill we construe its so (citation omitted)); prohibits general any harassing, purpose” terms un- as to effect its fair, Riddle, (10th deceptive practice. collection This Johnson 305 F.3d courts, Cir.2002) ("Because will appropriate, enable the where the FDCPA ... is a re- statute, proscribe improper liberally other conduct which is medial it should be construed addressed.”); consumer.”). specifically not see also Brown in favor of the (5th Cir.2011) signed that he over promissory note 657 F.3d lington, $2600 — U.S. —, concluding (en denied, Conversely, Internet. that banc), cert. (2012). respect does occur with When a violation not 182 L.Ed.2d S.Ct. 1692i(a)(2) earliest, until, not at the some act does co wrongful a defendant’s injury, provided of notice been ensures plaintiffs stat form has with the incide opportunity begin adequate to run that a consumer has not ute of does Frame, 657 to seek relief under the FDCPA. harmed. plaintiff until the is plaintiffs (explaining that F.3d at 238 Therefore, to that there are the extent disability claim accrued not when de of when a interpretations two reasonable sidewalk, an but fendant built inaccessible action” lan- “bring violation of such plaintiff disabled and when the became occurs, the nature of guage remedial being able the harm of not encountered and the of importance protecting FDCPA sidewalk); Piotrowski v. see also use by allowing them to sue under consumers Houston, 567, 576 City 1692k(d) of compel us to conclude Cir.2001). Here, debtor alleged does 16921(a)(2) complete §of not violation is until he injury not suffer becomes alleged becomes aware of until debtor suit and of a debt-collection aware the debt-collection suit.12 a distant forum. respond forced to Therefore, that a debt collec holding III. 1692i(a)(2) until tor does not violate conclusion for Our the debt-collec debtor receives notice of 1692i(a)(2) a violation of does prece aligns tion suit with our well-settled until not occur debtor receives establishing purposes of dent that for notice of debt-collection suit but- claim does ac statute of limitations a by an examination of the context in tressed inju actual plaintiff crue until the suffers adopted. which See

ry. Co., City Ry. Elam v. Kans. S. Second, a violation concluding Cir.2011) (“[W]hen the text provision such action” occurs a statute is of more than susceptible one solely upon of a cre- legis- meaning, reasonable we look unscrupulous perverse ates incentive history to legislative lative in- discern debt collectors to file debt-collection ac- tent.”). origins can service, delay there- purposefully tions and traced to the Federal Trade Commission’s by depriving a the benefit (“FTC”) debtor of standards, “pro- fair-venue short, peri- limitations one-year FDCPA’s if a that sues a vide[ ] creditor consumer Riddle, 1107, od. See Johnson account, delinquent for a the creditor may (10th Cir.2002). a result Such frus- judicial the consumer in only sue dis- purpose trates the the FDCPA because of trict in which the resides at consumer alleged it forces to scour court debtors beginning signed of action or the con- rights. Co., in order their preserve upon.” Penney records to sued tract In re J.C. 852-3029, obligation especially 722090, of this The burden at *4 No. 1986 WL (F.T.C. 1986).13 17, no reason apparent July here: Serna had to The FTC living County adopted observing believe that while in Bexar these standards after County “[kjnowingly in distant filing he would be sued in a that actions Harris bearing Importantly, and do not on whether a we need not de- collection has no 1692k(d)’s discovery rule could toll one- applies discovery cide whether a rule year limitation for suit after a violation 1692k(d)’s period. one-year arises. Our conclusion a violation under alleged only arises after Wolhar, F.Supp. 13. See also Dutton v. underlying debtor receives debt- notice of 1130, (D.Del.1992) (explaining that the gain filing pleading. in an unconscionable a Congress counties order Had intended unique or isolated advantage for a violation to have merely by [was] occurred practice, but instead been continu- it filing, phrase ha[d] would have used the “file ously widespread action”; instead, identified ... as a and such Congress declined in the debt collection common abuse field.” to use the word “file” and selected instead 173254, Spiegel, In re 1975 WL at *6. to use the broader term “bring.” Con gress’s decision to use “bring” the word Following implementation the FTC’s of rather than “file” demonstrates its intent standards, Congress the fair-venue ob- “bring requires such action” more importance “addressing] served the than simply filing pleading.14 See I.N.S. abuse,’ problem prac- of ‘forum an unfair Cardoza-Fonseca, 421, 433 n. in tice which debt collectors file suit (1987) 94 L.Ed.2d 434 against in courts which are so consumers (noting “strong that there is a presumption distant or inconvenient that consumers are that Congress expresses through its intent 95-382, appear.” S.Rep. No. at unable chooses”). language reprinted in 1977 U.S.C.C.A.N. remedy problem pre- 1699. To Second, the fair-venue standards on unfairly pursuing vent debt collectors from Congress which relied did not seek to cure debt-collection actions consumers se, per the harm of a suit but rather in goal receiving distant forums with the hardship experienced by addressed the judgments, Congress “adopt[ed] default respond debtor forced to in to the suit the ‘fair developed venue standards’ Filing pleading distant forum.15 alone [FTC].” give rise to this In- hardship. stead, upon receiving it is notice of a debt- background guides analysis This in alleged expe- collection suit that the First, debtor significant respects. light two riences the harm the fair-venue standards the earlier use of the terms “file” and remedy sought to because it is then that Report in the “institute” Senate and FTC Thus, respond he must to the suit. opinions, Congress’s use of the surrounding §in circumstances strong- such action” FDCPA’s ly suggests Congress adoption compel did not intend further us to conclude phrase simply equated for this to be with that for no viola- "permit significance fair-venue standards a debt collector undercut Con- somehow county to sue ... on a debt gress's "bring” decision to also use the term signed which the debtor resides or 1692i(a)(2). §in upon premised.” contract which the suit is Inc., removed)); Spiegel, In re See, e.g., Spiegel, re 1975 WL (F.T.C. Aug. 1975 WL at *8 (explaining opportunity that the *15 defend 1975) (explaining that the fair-venue stan totally "is foreclosed debt [the collector’s] "prohibit[] dards the institution of suits forum, use of forces the [a distant] against a defendant other than where [the] appear consumer who wishes to defend to defendant resides or where the contract sued a courtroom hundreds or thousands of miles modified, upon signed”), Spie enforced home, at a cost alone which in travel FTC, (7th 1976). gel Inc. v. 540 F.2d 287 Cir. may controversy”); exceed the amount in Ward, C-2602, Montgomery re No. 1974 WL out, dissenting opinion points 14. As the (F.T.C. (ex- 1974) at *1-3 Nov. Report Senate states that "[w]hen also plaining by that the harm committed the re- property, real action is it must be pursuit a tailer was its of debt-collection brought property where such is located.” See 95-382, "effectively a forum de- action in distant S.Rep. reprinted at in 1977 added). prive[d] many op- defendants of a U.S.C.C.A.N. reasonable defend”). “brought” portunity appear, and This use of the term does not to answer Commc’ns, Inc., 1692i(a)(2) until the debtor § occurs tion of Cir.1992) (noting that an FDCPA violation action. of the debt-collection given is notice a collection letter occurs at the

based on IY. mailing, of rather than the time of time “last receipt, because the debt collector’s Tenth holding aligns with the Today’s comply to with the FDCPA” opportunity involving in a suit decision Riddle Circuit’s collection let- 1692k(d) passed when it mailed the § for a viola pursuant to ters). Although Riddle addressed 1692f(l) FDCPA, § of tion of 15 U.S.C. 1692f(l) section of the FDCPA that that at issue here. section from separate —a on inappropriate involves violations based at 1111. The court Riddle See 305 F.3d suits, debt-collection but does not use violation rejected “argument that the reasoning such action”—its underlying on an debt-collection [based generally to claims under applies filing upon rather than upon occurred suit] arising from in- FDCPA for violations Observing that “the service.” Id. at 1113. stitution of debt-collection suits. See Rid- half party fact that a that has committed dle, result, As a Rid- wrong likely to com [and] an actionable dle’s conclusion that a violation of the mit the other half cannot suffice to create wrong- FDCPA does not occur based on a action,” complete present and cause alleged ful debt-collection suit until 1114, the court concluded that id. at supports our strongly debtor served con- claim plaintiffs “where the FDCPA arises 1692k(d), purposes clusion for instigation from the of a debt collection 1692i(a)(2) violation under does not arise suit, plaintiff complete does not have alleged until the receives notice.16 debtor cause of action ... and thus present meaning no occurs within the violation V. 1692k(d), plaintiff until has been (internal quotation Concluding

served.” Id. at 1113 omitted); marks Mattson U.S. W. violation of cf. tunity comply

16. The Ninth Circuit has also considered to with the FDCPA” and a one-year peri- point by objective when the FDCPA’s limitations "fixed and visible stan- dards, determine, regard begins with to a easy od to run debt-collec- one which is to ascer- analysis tion but its arises in a context parties, easily tainable both significantly present Mattson, (internal that differs from the applied.” 967 F.2d at 261 Stolman, 130 F.3d 892 omitted); Naas, case. See Naas quotation marks see also Cir.1997). The Naas court did not evaluate test). (discussing at 893 the Mattson debtor, the effect of service on a but instead applied When in a context where service is period whether the focused on be- relevant, suggests the Mattson test that a vio- gan appeals to run after a state court of lation of does not arise until the upheld judgment underlying debt- debtor is served because service is both the collection suit. Id. at 892-93. While the opportunity comply debt collector's last one-year Ninth Circuit noted that limita- with the FDCPA and occurs on a date that is “beg[i]n[s] tion to run on the easily parties. ascertainable While the complaint,” the date of service was irrelevant represents opportunity of suit holding appellate that an court’s to its narrow FDCPA, comply with the is not the debt underlying affirmation of an opportunity collector's last before the trigger judgment peri- did not the limitations inju- debtor aware of and suffers the becomes od. at 893. having ry respond the debt collector's Accordingly, violation Notably, Eighth of the FDCPA. the court relied on the Cir- Mattson, approach here conflict which determines when with the cuit's test Naas, holding Ninth Circuit's which did a cause of action accrues under the FDCPA oppor- address the effect of service on the debtor. based on both the debt collector's “last not 6(d) until pay filing could not have occurred Serna be der Rule to file suit and following came aware of Onwuteaka’s fee the denial of an IFP petition); served,17we now consid Co., suit when he was Castleberry v. Mortg. CitiFinaneial timely. suit was The (5th Cir.2007) er whether Serna’s Fed.Appx. 356-57 period provides that FDCPA’s limitations 6(d) (unpublished) (explaining that Rule “may Serna’s FDCPA may period extend the for action after year within one the date on receiving notice of a court’s order violation of [Onwuteaka’s action must be taken a certain time 1692k(d). §See ] oecur[ed].” service). words, after In other Serna Because the of the violation itself is date by refiling could have acted paying and his not calculating included limitations day fee the same his IFP application period, argues (assuming Onwuteaka denied because was his time to act under date) August trigger 14 was the Serna 1692k(d)’s one-year limitation continued required would have been to file his com through August 2011. Because Rule 14, 2011; however, plaint by August be 6(d) provided days, Serna three additional Sunday, cause that date was a his limita 18, 2011, filing August on timely.18 was period expired August tions on 2011. Accordingly, we conclude that Onwutea- (C). 6(a)(1)(A), See Fed.R.Civ.P. Serna argument ka’s that Serna’s suit un- was original complaint filed his and IFP appli 1692k(d)’s timely one-year based on limi- 12, 2011, cation on but the district period tations as he calculates it fails. court IFP application August denied his dissenting opinion argues that period within the limitations al apply we should analysis ternatively argued by Onwuteaka. The “brought” to the word provided court notice to Serna of its denial 1692k(d) such that Serna would be re- application by of the IFP mail and elec quired given to have notice of suit means, thereby entitling' tronic him to argu- date. Onwuteaka did not make this days three to file his court, ment to the district court or this 6(d) (“When party fee. See Fed.R.CivP. a argument we decline to reach an not raised specified ... act within time after by any party. Bigler, See United States v. days service ... 3 are added after the (5th Cir.1987) (“This 817 F.2d period expire would otherwise under Rule 6(a).”); repeatedly court has that it ruled will Sprint see also Jarrett v. U.S. Co., Commc’ns consider issues that were not raised before F.3d Cir. 1994) court, and, (providing days fortiori, three additional un- the trial that it will parties 17. The do not contest that Serna be- bar or a statute of limitations. See Archer v. through Acceptance Corp., came aware of Onwuteaka’s suit ser- Nissan Motor result, Cir.2008); Johnson, vice. we As need not decide whether Davis v. cf. service, (5th Cir.1998) ("If in the absence of other one-year means of notice filing period would establish violation under is a limitation on [in statute] 1692i(a)(2). courts, jurisdiction of federal federal then power period lack the to extend the courts adjudication 18. Because we conclude that [I]f Serna's allow for late of claims.... filed, timely [one-year filing] period we need not reach the issue of ais statute of limitations, can, period extraordinary whether the FDCPA’s limitations courts cir- cumstances, during pendency proceed[.]”). tolled of an unsuccessful allow late claims to application. IFP This consideration —as well While some courts have concluded that jurisdiction- discovery period consideration of whether a FDCPA’s limitations is not al, see, Serv., applies require e.g., Mangum rule us v. Action Collection —would (9th Cir.2009), one-year to determine whether the FDCPA's 939-40 we de- period jurisdictional functions as a cline to reach this issue. 450 counterintuitive; blush, on notion is that are not raised issues

not consider they examination, er- except when it is demonstrable litigants appeal careful jurisdiction.”). We nearly phrases undermine the court’s are ror: Those identical meaning opine to on the have no occasion given act and should be found in the same 1692k(d)’s “brought” use of the term meaning. respectfully I dissent. the same par- raised arguments under the

ties.19 I.

A.

CONCLUSION action,” we “bring such interpret To may that a debtor provides The FDCPA statutory con- ought begin, to year “[a]s from the an action “within one bring ease[,] statutory ... occurs.” with on which the violation struction date 1692k(d). text, understanding that a violation proceed We conclude from the [ujnless until defined, not occur statutory does otherwise suit is filed and the in accor- generally interpreted are terms Therefore, is notified of the suit.20 debtor ordinary meaning.”1 “It dance with their timely. action was Serna’s that when the statute’s is well established plain, the sole function of the language is and REMANDED. REVERSED disposition re- courts —at least where SMITH, Judge, E. Circuit JERRY quired by the text is not absurd —is dissenting: Lamie according enforce it to its terms.” Tr., 526, 534, 124 U.S. S.Ct. view, “bring such majority’s

In the (2004) (quotation L.Ed.2d 1024 1692i(a)(2), action,” refers U.S.C. omitted). marks and citation mean- “[T]he ... something “[a]n different 1692k(d). not, brought,” id. statutory language, plain At or may first be Moreover, may presumption statute take on distinct characters while is a same there statutory within the same statute ob- that identical terms from association with distinct Supreme interpreted similarly, the will be jects calling implementation for different uniformity require Court has "declined to (alteration original) (emphasis strategies.” resolving ambiguities statu in identical added) (internal quotation citation and marks Energy Corp., tory v. Duke terms.” Envtl. omitted)). Def. 561, 575, U.S. 127 S.Ct. result, (2007). we L.Ed.2d 295 As a even if interpretation 20. Because our 1692k(d)’s interpret use of the term were to 1692i(a)(2)'s ambiguous reference to necessarily adopt "brought,” we intimately Congress’s tied to such action” "bring meaning action” be identical such adopting pur- intent in the FDCPA and effectively irrebutta cause is ... no “[t]here adopted, pose for which this statute was presumption ble that the same defined term holding necessarily extend to the provisions in different of the same statute interpretation used in of this interpreted identically. Context must other statutes. 575-76, counts." See id. at 127 S.Ct. (internal quotation citation and marks omit - -, Cloer, U.S. 1. Sebelius ted) presump (explaining that the "natural (2013) (quota- 185 L.Ed.2d in different tion that identical words used omitted; alter- tion marks and citation second parts act to have the of the same are intended original); Credit accord Ford Motor ation readily meaning rigid and same is not Dale), (In Co. v. Dale re yields whenever there is such variation J.) (5th Cir.2009) (observing (Haynes, that we used as in which the words are connection begin plain language of the stat- with "the reasonably to warrant the conclusion ute,” "ordinary generally then consult parts they employed were in different meaning”). understood given A term in the act with different intent. King v. St. Vin When depends on context.” “cause of action is based on 215, 221, 112 Hosp., 502 U.S. cent’s S.Ct. express federal law and the absence of an (1991). 570, 116 L.Ed.2d 578 federal statute of limitations makes it nec- essary period to borrow a limitations from dictionary The defines to an ac- statute, another the action is not barred if legal or “institute pro- tion” as “sue” Dictionary it has in compliance been ‘commenced’ ceedings.” Black’s Law (9th ed.2009). period.” a with Rule 3 within the borrowed To “sue” is institute “[t]o (another Conrail, id. at v.West against party),” 35, 39, lawsuit is, in (1987). and to “institute” turn “[t]o 95 L.Ed.2d 32 That is so start; commence,” id. begin or at 868. even where the statute from which the Thus, brought suit is when in law it is “[a] requires period was borrowed commenced, evidently ... the two words service within period. the limitations thing, mean the same and are used inter- at surprisingly, S.Ct. 1538. Not changeably.” Goldenberg Murphy, 108 many federal statutes use “file” and 162, 163, U.S. S.Ct. 27 L.Ed. 686 “bring” interchangeably,3 distinguish (1883). bringing serving process,4 suit from law,

In the context of federal a suit is both.5

brought or commenced when it is filed.

Under Federal Rules Civil Proce B. dure, example, for civil action is com “[a] panel majority difficulty The has no in- by filing complaint menced with the ... terpreting may action be “[a]n court.” Fed.R.Civ.P. 3.2 Because of Rule 1692k(d), § brought,” according to its ordi- right a suit on a created federal “[i]n nary meaning under federal law. The ma- law, filing complaint satisfy suffices to jority correctly notes that Serna “filed” his the statute of limitations.” Henderson v. States, on then “re- United 657 n. U.S. (1996). 1638, 134 it August Considering S.Ct. L.Ed.2d 880 filed” 18. wheth- (A)....”) original Advisory (empha- subparagraph 2. Committee debated action under added); 355(D)(i) by filing ("Filing § whether suit should be commenced sis 21 U.S.C. or, instead, else; action[:j plus something applicant "[a]t ... referred to [T]he civil majority one time a of the Committee favored may bring in such subclause ... a civil ac- ‘hip-pocket’ ...”) added). the so-called method of com- tion. action, mencing proposed and the text of provided what is now Rule 3 that an action See, 25(c) e.g., ("Any 7 U.S.C. such action pro- would be commenced the service of brought years shall be not later than two after Wright cess.” 4 Charles A. & Arthur R. Mil- the date the cause of action arises.... Pro- ler, Federal Practice Procedure may any cess in such action be served in (3d ed.2002). proposed Others that an district....”); 5712(c) judicial 15 U.S.C. upon filing, action would commence "but ("Any brought civil action under this section provision with a further that the action should may ... be in the district wherein the sixty abate unless service was made within process defendant is found ... and in such days.” Id. The committee settled on the cur- (em- district....”) may be cases served id., language, rent which has not been amend- added). phasis except stylistic purposes. ed (“For 1956(b)(2) See, 4617(5)("(A) 5. See 18 U.S.C. e.g„ gener- 12 U.S.C. al[,] adjudicating ... Agency appointed an action filed the district conservator [i]f section, jurisdiction any foreign regulated courts shall have over or receiver under this entity may, person days appoint- within 30 whom the action is of such ment, bring brought, process upon foreign an action in the United States if service of (B) ”). Upon person district court.... made.... way another majority timely, the suit was er Serna’s 1692i(a)(2). inter- and “file suit” “bring suit” uses changeably: reading of the rules By any reasonable limitations period pro-

The FDCPA’s construction, the terms should statutory FDCPA vides that Serna’s Because Ser- given meaning. be the same year one brought ... within year na more than a after Onwuteaka sued alleged vio- [Onwuteaka’s date on which did, untimely. action was Serna’s 1692i(a)(2)] occurred]. See lation of II. 1692k(d). the the date of Because in calculat- not included

violation itself is Rather than confront the text of the period, Onwuteaka ing the limitations directly, majority relies on can- statute (assuming August was argues that history. legislative ons of construction and date) would have been trigger Serna crystal But “Fifth Circuit law is clear complaint by August required to his when, here, is language file of a statute however, 14, 2011; that date because unambiguous, this has no need [e]ourt ex- Sunday, period his limitations was a or and will not defer to extrinsic aids 15, 2011. pired August on See Fed. Comm’r, history.” legislative Guilzon (C). 6(a)(1)(A), his Serna R.Crv.P. 819, Cir.1993); filed accord 985 F.2d application and IFP original complaint La., Hamilton v. United Healthcare of Because Rule August on 2011.... Cir.2002). Inc., 310 F.3d 6(d) three additional provided Serna plain language “Because the of the statute 18, 2011, days, unambiguous, we need not examine the timely. history.” Conway v. United legislative (5th Cir.2011) added, original.) States, in ellipses (Emphasis first 647 F.3d J.) (Haynes, “Bring such action” could be indication to congressional “Absent some ambiguous in some other context—in some contrary, give the same we decline jurisdictions “brought” an action is when meaning term in the same Act a different “brought” pro- filed and in others is rights depending on whether “[ajmbiguity cess is served.6 But are at issue.” plaintiff or the defendant possibilities creature not of but definitional Costa, Palace, 539 U.S. Desert Inc. v. Gardner, statutory of context.” Brown v. (2003). 2148, 156 L.Ed.2d 84 123 S.Ct. 552, 130 513 U.S. 115 S.Ct. Indeed, statutory rule of normal “[t]he (1994). In the broader con- L.Ed.2d 462 identical words construction assumes that law, text of federal and in the narrower the same act are parts used in different FDCPA, “bring context of the such action” meaning.” intended to have the same Sor- ambiguous. is not Sec’y Treasury, enson v. (1986) 1600, L.Ed.2d 855 identifying ambiguity in Instead omitted). statute, (quotation citations marks and the text or context of the the majority or context of relies on our sister circuit’s con- Nothing the text phrase “attempt an action” struction of a different FDCPA indicates that to — way separate one to collect”7—from a section interpreted should be against each defen- Compare, e.g., Proc. Ann. art. civil action is commenced La.Code Civ. (a) upon ("A served dant: when the summons is a demand for the en- civil action is defendant.”). legal right. It is commenced forcement of a presenting the pleading of a Riddle, competent jurisdic- 7. Johnson v. demand to a court of with, 3.01(a) ("A (10th Cir.2002). tion.”), e.g., Minn. R. Civ. P. statute, Regard- original). plain 1692f.8 alteration in meaning 15 U.S.C. of the statute —as and not statute, written as anno- the remedial nature of the less of panel majority tated however,9 am- majority has not shown —should invoked to render untimely. Serna’s suit biguity absurdity.10 and cannot show ambiguity, inqui- “In the absence of our III. [Ajbsent

ry the text itself.... ends with Spelunking unnecessarily in depths doing indication that so would frus- legislative history, majority loses its yield or Congress’s trate clear intention way.11 acknowledges It that the FTC con- patent absurdity, obligation apply is to sistently faulted collectors “filing” debt wrote it.” Hamil- Congress the statute as “instituting” suits distant fora and ton, (citation omitted; 391-92 problem “addresses the point, (citing Pekay, 8.Even if Johnson v. Riddle were on F.Supp. its Blakemore v. not, words, (N.D.Ill.1995)) reasoning added). majority's (emphasis does 982-83 "strongly support!]” holding. its The John- possi- The Ninth Circuit thus considered the court, service, son v. Riddle 305 F.3d at bility began held that limitations to run on plaintiff complete that “the does not have a holding precise but it stated its terms: action, present alleged and cause of and thus no Where "the violation of the Act was meaning violation within the bringing occurs the of the suit itself ... the 1692k(d), plaintiff until the has began been statute of limitations to run on the party served.” filing complaint.” ‘TT]he fact that a that has Id. the Because wrong,” 1692i(a), committed half an actionable construing § Ninth Circuit was not half,” likely "is majority technically may to commit the other creating the not be serving process, “cannot split, suffice create a circuit but there is a conflict between complete present approaches. cause of action.” Id. at the two 1692i(a) nothing 1114. But majority's in the text of invocation of Mattson U.S. Communications, Inc., "bring divides such action” into two halves of West wrong. Claiming, major- 1992), an actionable as the herring. Cir. ais red Howev Riddle, ity following does in Eighth might Johnson v. that er useful the Circuit’s test be in when, plaintiff complete determining does not have a exactly, a debt collector present begs cause of ambiguous provisions action until notified violated the of 1692e 1692f, question whether the relevant violation fil- question is or it irrelevant is to the filing plus something or brought more. debt collector an action in a distant forum. court, As did the Johnson v. Riddle id. at majority pretends ap 1114 n. that its Hamilton, 310 F.3d at 392. proach does not conflict with Naas v. Stol man, 1997). Cir. unscrupulous might 10. That debt collectors appeals Because no federal court of had an by delaying cut into the statute of limitations point swered “at which the statute of limi might justify applying discovery service rule begins tations to run when the vio equitable tolling finding or but not a of ab- lawsuit,” lation of the Act is the aof surdity. the Ninth Circuit considered two district one, opinions. court majority’s approach statutory Id. In "the court held 11. The inter- pretation say that the Usually, violation occurred and the statute odd to least. starting point discerning congres- of limitations started to run on either "[t]he day day existing statutory was or the sional intent is the text and filed served, Lamie, deciding predecessor was but between the two not the statutes.” unnecessary alternatives was in that case.” U.S. at 124 S.Ct. 1023. Without demon- (citing Kelly, strating ambiguity Id. Prade v. Jackson & an in the text of the stat- (N.D.W.Va.1996)) F.Supp. (empha prerequisite considering legislative ute—a other, added). history majority attempts sis In the the court was to create a —the precise, holding mystery by comparing statutory "more that the statute of text not statute, began gar day predecessor to run from the even with but with the proceedings legislative history. nishment were initiated.” Id. abuse,’ plain meaning supports unfair in FDCPA practice of ‘forum 1692i(a)(2); untimely.13 against con- Serna’s suit was collectors suit which debt file are which so distant in courts sumers distinguishes majority Because the consumers are unable to inconvenient same, I has made Congress 95-382, 5, reprinted appear,” S.Rep. respectfully dissent. (emphasis in 1977 U.S.C.C.A.N. added). Re- that Senate As described “the ‘fair venue stan-

port, adopted the bill by the A debt developed [FTC].

dards’ suit must do so either

collector who files resides the consumer or where

where signed.

underlying contract When property, real it must be

action is property located.” where such added). Larry MOORE, Plaintiff-Appellant J. here; mystery taken great is no There value, legislative history indi-

at face Congress codify intended cates MANNS; Industries, Jonathan P. PPG against filing suit in a distant FTC’s rule Incorporated; Ron Williams Con forum, in a prohibited bringing so it Angela struction, Incorporated; Neu synonymous distant forum—a term under gent; Rhoads, Defendants-Ap Mark majority, “bring” federal law. Contra pellees. term than is not a broader “file” under law; very Report federal Senate 12-31265. majority relies inter-

which the uses them Appeals, United States Court changeably. Fifth Circuit. uncertainty if there were some as Even used action” why Congress “bring such 8, 2013. Oct. action,” easily instead of “file such it is Congress explained. Perhaps wanted to thing

use term for the the same same of the

different sections same Act. Com- 1692i(a)(2),

pare 15 with 15 U.S.C. 1692k(d). maybe Congress Or

U.S.C.

wanted to use standard found

throughout the United States Code.12 event, legislative history See, e.g., ("Any Finally, majority’s 15 U.S.C. civil ac- I am baffled di- gression usually We do into Texas law. brought brought ... action tion ... shall interpret of federal see- the terms statutes brought brought ... ... shall be suits they particular how are used in one state's brought brought ... action ... actions distinguishes point laws. is that Texas If the brought.”); ... action is see also pleading bringing between Interpreting supra 3-5. these other notes what have relevance does distinction statutes, legislative we see must whether the interchangeable here? The terms are under history before we used "file” conclude law, majority implicitly federal ac- synonyms? "bring” and "file” are interpreting knowledges applying 1692k(d).

Case Details

Case Name: Rolando Serna v. Law Office of Joseph Onwuteaka, e

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 7, 2013

Citation: 732 F.3d 440

Docket Number: 12-20529

Court Abbreviation: 5th Cir.