Jamie Michalak v. LVNV Funding, LLC

Filing

OPINION filed : We REVERSE and REMAND for further proceedings consistent with this opinion, decision not for publication. Martha Craig Daughtrey, Circuit Judge; Julia Smith Gibbons, Circuit Judge and Richard Allen Griffin, Circuit Judge.

Case: 14-3514

Document: 26-2

Filed: 05/12/2015

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0357n.06
No. 14-3514

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMIE MICHALAK,
Plaintiff-Appellant,
v.
LVNV FUNDING, LLC,
Defendant-Appellee.

BEFORE:

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May 12, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT
FOR
THE
NORTHERN DISTRICT OF
OHIO

OPINION

DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. On November 8, 2013, Jamie Michalak
filed a class action complaint alleging that LVNV Funding, LLC (“LVNV”) violated the Fair
Debt Collection Practices Act (“FDCPA”). “Beginning on or about May 2012,” the complaint
claims, “LVNV sent multiple dunning letters to Ms. Michalak by way of various agents.”
Compl. ¶ 9. “In each dunning letter, LVNV claimed a different amount . . . due,” id. ¶ 10, and
each new amount was “inconsistent, erratic, and arbitrary,” id. ¶ 11. According to the complaint,
“LVNV had no right in contract or law” to collect these amounts. Id. ¶ 12. As to the class, the
complaint seeks recovery on behalf of Michalak and “all consumers who have been dunned by
LVNV for amounts to which LVNV has no[] right in contract or law, for the one-year period
preceding the date of filing” of the complaint. Id. ¶ 18.

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No. 14-3514, Michalak v. LVNV Funding, LLC
LVNV moved to dismiss the complaint for failure to state a claim and as barred by the
FDCPA’s statute of limitations, 15 U.S.C. § 1692k(d), which allows courts to enforce only those
actions brought “within one year from the date on which the violation occurs.” To its motion
LVNV attached three dunning letters to Michalak, all showing dates in May 2012 or earlier. The
district court granted the motion over Michalak’s objection, relying on LVNV’s letters to hold
Michalak’s claim time-barred.
Michalak appeals that decision, and LVNV, for its part, asks us to affirm not only on
limitations grounds but also because the complaint fails to allege a plausible violation of the
FDCPA. We agree with Michalak’s view, and we now reverse.
I.
We review de novo a dismissal under Rule 12(b)(6), accepting all factual allegations as
true and construing the complaint favorably to the plaintiff. Conlon v. InterVarsity Christian
Fellowship, 777 F.3d 829, 832 (6th Cir. 2015). “Generally, a motion under Rule 12(b)(6), which
considers only the allegations in the complaint, is an ‘inappropriate vehicle’ for dismissing a
claim based upon a statute of limitations.” Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d
459, 464 (6th Cir. 2013) (quoting Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir.
2012)). And that is because a plaintiff has no obligation under Rule 8 to plead compliance with
the statute of limitations. Cf. Jones v. Bock, 549 U.S. 199, 212–15 (2007). Instead, the burden
of pleading, and proving, the affirmative defense of § 1692k(d) rests with the defendant. See
Fed. R. Civ. P. 8(c)(1).
Dismissal can be appropriate, though, if the “allegations in the complaint affirmatively
show that the claim is time-barred.” Cataldo, 676 F.3d at 547 (emphasis added). But that is not
the case here.

The complaint states that Michalak received dunning letters from LVNV

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No. 14-3514, Michalak v. LVNV Funding, LLC
“[b]eginning on or about May 2012,” roughly a year-and-a-half before she sued. Compl. ¶ 9.
That suggests that recovery on one dunning letter is time-barred. As both parties acknowledge,
however, each dunning letter may constitute a separate violation of the FDCPA. See Purnell v.
Arrow Fin. Servs., LLC, 303 F. App’x 297, 301–02 (6th Cir. 2008); accord Solomon v. HSBC
Mortg. Corp., 395 F. App’x 494, 497 n.3 (10th Cir. 2010). We can clearly infer from the use of
the word “[b]eginning” that Michalak continued to receive dunning letters past May 2012
through some unspecified time. So the complaint does not conclusively establish LVNV’s
affirmative defense as to all of its letters, or how many such letters exist. If anything, we can
infer from the description of the class as consumers with timely claims, and the complaint’s
inclusion of Michalak in that class, that she received at least one dunning letter on November 8,
2012 or later.
Nor was dismissal appropriate on the strength of the letters that LVNV attached to its
motion. Perhaps those letters will help LVNV prevail upon a motion for summary judgment.
But here, before discovery, Michalak had no duty to “respond to a motion to dismiss with
affirmative matter raising a triable issue of fact on an affirmative defense.” Rembisz v. Lew, 590
F. App’x 501, 504 (6th Cir. 2014). It should also go without saying that LVNV has every reason
to proffer only untimely letters in support of its motion. The district court therefore erred in
dismissing the complaint as time-barred.1
II.
For the reasons set forth above, we reverse and remand for further proceedings consistent
with this opinion.

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We leave it for the district court to decide in the first instance whether Michalak’s complaint should be
dismissed for other reasons.

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