Wednesday, May 22, 2019

A Short, Simple, Successful Cert Petition

A few months ago, Morton, Pennsylvania attorney Matthew B. Weisberg of Weisberg Law got some publicity after the Supreme Court granted his client's cert petition to consider whether the discovery rule applies to the Fair Debt Collection Practices Act.

The hubbub surrounding the petition is its lengththe substantive portion is only eight pages long, including the signature block. So how did Weisberg convince the Court to hear the case in only eight pages? Let's take a look.

The Question Presented

Weisberg's Question Presented is succinct and highlights a circuit split on applicability of the discovery rule to the FDCPA:

Whether the "discovery rule" applies to toll the one (1) year statute of limitations under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq., as the Fourth and Ninth Circuits have held but the Third Circuit (sua sponte en banc) has held contrarily. 

The Statement of the Case

Weisberg's recitation of the underlying events is 3/4 of a page. It totals seven sentences, broken into six paragraphs, and includes only the most basic information.

Petitioner (Appellant-Plaintiff below), Kevin Rotkiske, accumulated credit card debt between 2003 and 2005. The debt was referred by his bank to Respondent (Appellee-Defendant below), Klemm & Associates, et al., (collectively, "Klemm") for collection.

Klemm sued for payment in March 2008 and attempted service at an address where Rotkiske no longer lived.

Klemm withdrew its suit when it was unable to locate Rotkiske.

In January 2009, Klemm re-filed its suit and attempted service at the same address.

Unbeknownst to Rotkiske, an unrelated incorrect addressee accepted service on Rotkiske's behalf.

Rotkiske discovered the judgment when he applied for a mortgage in September 2014. 

The procedural history, including both the district court and appellate court proceedings, occupies another page or so and is also minimal. 

Weisberg puts his money where his mouth is. This strategy works well because he argues later that the simple facts make the case a good vehicle for deciding the legal question. What better way to show the Court that the case is indeed factually simple than writing a short statement of facts?

Reasons for Granting The Writ

In the next four pages, Weisberg argues that the Court should grant the writ for four reasons: (1) the circuits are split on the issue, (2) the Third Circuit improperly interpreted Supreme Court precedent on a similar issue; (3) the issue has never been decided by the Court; and (4) the simple facts present the "perfect vehicle" for deciding the issue. 

Like the factual background, Weisberg's legal arguments are also to the point. For example, in arguing that the Third Circuit improperly applied Supreme Court precedent on a similar question, Weisberg writes:

TRW recognized that Congress in enacting the [Fair Credit Reporting Act] therein createdtextuallyits own statute of limitations paradigm.

On the contrary to the FCRA, the FDCPA does not contain an embedded statute of limitations. [Thus,] the FCRA's statutory limitations' text should have required [a] contrary holding [as to the FDCPA] . . . ."

My Assessment

I'm impressed by the tightness of the writ, and Weisberg obviously worked hard to avoid rambling. I would change some phrasing in a few spots and clean it up a little, but overall, it's a good example of less-is-more. 

NOTE: Rotkiske's petitioner's brief was filed on May 13, 2019 by Scott E. Gant of Boies Schiller, who is now listed as counsel of record. The Court has yet to schedule oral argument.