Professional Documents
Culture Documents
Brief For Petitioner
Brief For Petitioner
18-328
IN THE
SUPREME COURT OF THE UNITED STATES
_____________
KEVIN ROTKISKE,
Petitioner,
V.
PAUL KLEMM, ET AL.,
Respondents.
____________
QUESTION PRESENTED
Whether the “discovery rule” applies to the one-
year statute of limitations under the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692, et seq.
ii
TABLE OF CONTENTS
JURISDICTION ....................................................... 1
SUMMARY OF ARGUMENT................................ 11
ARGUMENT .......................................................... 14
CONCLUSION ....................................................... 41
vi
TABLE OF AUTHORITIES
CASES
Bailey v. Glover,
88 U.S. 342 (1874) .................................... passim
Chaudhry v. Gallerizzo,
174 F.3d 394 (4th Cir. 1999) ........................... 31
Gabelli v. SEC,
568 U.S. 442 (2013) ......................................... 28
Gonzalez v. Kay,
577 F.3d 600 (5th Cir. 2009) ........................... 31
Green v. Brennan,
136 S. Ct. 1769 (2016) ............................... 37, 38
Holmberg v. Armbrecht,
327 U.S. 392 (1946) ........................24, 25, 26, 28
viii
Honda v. Clark,
386 U.S. 484 (1967) .................................... 38-39
King v. Burwell,
135 S. Ct. 2480 (2015) ..................................... 29
Meyer v. Holley,
537 U.S. 280 (2003) ......................................... 20
Pace v. DiGuglielmo,
544 U.S. 408 (2005) ...................................... 9-10
Reiter v. Cooper,
507 U.S. 258 (1993) .................................... 36-37
Rotella v. Wood,
528 U.S. 549 (2000) ......................................... 28
Sheriff v. Gillie,
136 S. Ct. 1594 (2016) ....................................... 3
Sykes v. Harris,
No. 09 CIV. 8486 (DC), 2016 WL 3030156
(S.D.N.Y. May 24, 2016) .................................. 12
Urie v. Thompson,
337 U.S. 163 (1949) ............................. 25, 26, 40
xi
28 U.S.C. § 1254(1)................................................... 1
OTHER AUTHORITIES
2 Calvin W. Corman,
Limitation of Actions (1991) ...........14, 22, 25, 39
OPINIONS BELOW
The Opinion of the United States Court of
Appeals for the Third Circuit was issued on May 15,
2018, is reported at 890 F.3d 422, and is reproduced
in the Petition Appendix at Pet. App. 1.1
The March 15, 2016 Opinion of the United
States District Court for the Eastern District of
Pennsylvania is unreported, but is available at 2016
WL 1021140, and is reproduced at Pet. App. 15.
JURISDICTION
This Court has jurisdiction under 28 U.S.C.
§ 1254(1). The Third Circuit issued its opinion and
entered judgment on May 15, 2018. Pet. App. 1-14.
The Petition for Writ of Certiorari was filed on
September 11, 2018, and granted on February 25,
2019.
STATUTORY PROVISIONS
This case concerns interpretation of the Fair
Debt Collection Practices Act (the “FDCPA”), Pub. L.
No. 95-109, 91 Stat. 874 (1977), including section
813(d), which provides:
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.
15 U.S.C. § 1692k(d).2
3 See also Sheriff v. Gillie, 136 S. Ct. 1594, 1598 (2016) (noting
enactment to prevent competitive disadvantage of
appropriately-acting debt collectors); Jerman v. Carlisle,
McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 577 (2010)
(“Congress enacted the FDCPA . . . to ensure that debt
collectors who abstain from [abusive] practices are not
competitively disadvantaged”). The statute also “seeks to help
consumers . . . by preventing consumer bankruptcies.”
Midland Funding, LLC v. Johnson, 137 S. Ct. 1407, 1414
(2017).
4
SUMMARY OF ARGUMENT
Congress enacted the FDCPA more than four
decades ago to “eliminate” widespread misconduct by
third-party debt collectors—misconduct that was
hurting consumers, and disadvantaging scrupulous
debt collectors who suffered competitively when
refraining from such tactics.
In addition to generally prohibiting false,
deceptive, misleading, unfair and unconscionable
conduct by third-party debt collectors, the FDCPA
specifically proscribes a wide range of violations
which can or are likely to occur without immediate
awareness by the victim. See infra Section II.D.2.
The existence of victims “blamelessly ignorant” of
FDCPA violations giving rise to liability under the
statute is not an anomaly. The FTC and CFPB
report thousands of complaints about debt collector
actions which, by their nature, might not come to the
attention of the prospective plaintiff until months or
years after they transpire. For example, of the
approximately 600,000 complaints the FTC received
about debt collection activities between 2009 and
2013, nearly half concerned actions by debt collectors
that might occur without the consumer’s knowledge
at the time of the violation itself.12 And it stands to
* * *
These cases form the backdrop against which the
FDCPA was enacted.24 Taken together, it is difficult
to imagine that Congress would have expected
anything other than judicial application of the
discovery rule to the FDCPA claim of Petitioner or
any other blamelessly ignorant plaintiff.25
SCOTT E. GANT
Counsel of Record
SAMUEL S. UNGAR
BOIES SCHILLER FLEXNER LLP
1401 New York Avenue, NW
Washington, DC 20005
(202) 237-2727