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Gonzalez v. Portfolio Recovery Associates, LLC

United States District Court, Third Circuit

September 20, 2013



KEVIN McNULTY, District Judge.

Plaintiff, Ruben Gonzalez, initiated this lawsuit against Defendant, Portfolio Recovery Associates, LLC, in the Superior Court of New Jersey, Law Division, Special Civil Part, on February 15, 2013. (Docket No. DC-002633-13 (Hudson County))[1]. The complaint alleges that Defendant, a debt collection agency, violated the Fair Debt Collection Practices Act (FDCPA), 15 USC § 1692 et seq. According to the complaint, Defendant sent Plaintiff a letter that misstated the amount of the debt and falsely represented that an attorney was involved in the collection process. On March 6, 2013, Defendant removed the action to this Court.

Before the Court arc Defendant's motions (i) to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6), on grounds that it was filed after the running of the one year statute of limitations set forth in the FDCPA, 15 USC § 1692k(d); and (ii) for sanctions, pursuant to Federal Rule of Civil Procedure 11.

Plaintiff responds that this action relates back to the date of his tiling of a prior action. Plaintiff did indeed file an earlier, virtually identical complaint in the Superior Court of New Jersey on September 4, 2012. (Docket No. D017261-12 (Hudson County)). That filing, if effective, would have been timely. On December 7, 2012, however, that earlier complaint was dismissed without prejudice. The current action was filed later, after the statute of limitations had expired.

As set forth below, I do not find that the current complaint relates back to the filing date of the prior action, and I see no basis for equitable tolling of the statute of limitations. The motion to dismiss will therefore he granted. The motion for sanctions, however, will be denied. These motions are decided without oral argument. See Fed.R.Civ.P. 78(b).


Defendant's Motion to Dismiss

i. Rule 12(14(6)

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it fails to state a claim upon which relief can be granted. The moving pasty hears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). For purposes of a motion to dismiss, the well-pleaded factual allegations of the complaint must be taken as true, with all reasonable inferences drawn in plaintiffs favor. Phillips a County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) ("reasonable inferences" principle riot undermined by subsequent Supreme Court case law). In reviewing the well-pleaded factual allegations and assuming their veracity, this Court must "determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009).

"When reviewing a complaint under Federal Rule of Civil Procedure 12(b)(6), a court may examine the facts as alleged in the pleadings as well as matters of public record, orders, exhibits attached to the complaint, and items appearing in the record of the case.' Yuhasz a Poritz, 166 Fed.Appx. 642, 646 (3d Cir. 2006) (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n. 2 (3d Cir. 1994)); see also Carlanger v. Verbeke, 223 F.Supp.2d 596, 600-601 (D.N.J. 2002).

Plaintiff's opposition to the motions introduces facts and materials not contained or referenced in his complaint. Plaintiff submits copies of his September 4, 2012 state court complaint, Defendant's motion to dismiss it, the certification in support of that motion, and the order entered by the Superior Court of New Jersey dismissing that complaint without prejudice. I take judicial notice of these public records. They do not require that 1 convert Defendant's motion into one for summary judgment. See Fed.R.Civ.P. 201; Yuhasz v. Poritz, 166 Fed.Appx. at 646. Indeed, I review these materials only in connection with Plaintiffs relation-back and tolling arguments; they do not bear on the veracity of the allegations of the complaint, which 1 take as true for purposes of this motion. Phillips, 515 F.3d at 231,

ii. Analysis

Any claim brought pursuant to the FDCPA must be filed within one year after the date of the alleged violation. 15 USC § 1692k(d). Defendant argues that the complaint is untimely on its face, because it does not allege that Defendant committed any violation within the year preceding its filing. Cf. Oshiver, 38 F.3d at 1385 n. 1; 58 Wright and Miller, Federal Practice and Procedure: Civil 3d § 1357 n. 69 (a complaint may, on its face, be subject to dismissal on the basis of an affirmative defense such as statute of limitations).

According to the complaint, Defendant sent a letter that violated the FDCPA on or about November 7, 2011. Accordingly, this action, filed on February 9, 2013, falls outside the one-year limitations period of § 1692k(d). Plaintiff does not deny this. Instead, he argues that his action is not time-barred because it relates back to September 4, 2012. On that date, Plaintiff filed a State court complaint substantially identical to this one. Defendant did not answer, and a default was entered. Thereafter, however, on Defendant's motion, the State court vacated the default and dismissed ...

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