Bryson Ray v. McCullough Payne & Haan, LLC , 838 F.3d 1107 ( 2016 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11518
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-01129-ODE
BRYSON RAY,
Plaintiff-Appellant,
versus
MCCULLOUGH PAYNE & HAAN, LLC,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 29, 2016)
Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.
ED CARNES, Chief Judge:
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The venue provision in the Fair Debt Collection Practices Act (FDCPA)
requires that “[a]ny debt collector who brings any legal action on a debt against
any consumer shall . . . bring such action only in the judicial district or similar
legal entity — (A) in which such consumer signed the contract sued upon; or (B) in
which such consumer resides at the commencement of the action.” 15 U.S.C.
§ 1692i(a)(2). In this case, the law firm of McCullough Payne & Haan, LLC filed
a lawsuit in state court against Bryson Ray, a consumer-debtor. In compliance
with the FDCPA’s venue provision, the McCullough firm brought that action in
Fulton County, Georgia, where Ray resided. After obtaining a judgment against
Ray in that action, the McCullough firm initiated a garnishment proceeding against
Ray’s bank to collect on the judgment. 1 As required by Georgia law, it brought the
garnishment action in Cobb County, Georgia, where the bank, as the garnishee,
was located.
In response to the garnishment action, Ray filed this lawsuit, alleging that
the McCullough firm had violated the FDCPA by bringing the garnishment action
in a judicial district other than the one in which Ray resided or signed the
underlying contract. On the McCullough firm’s motion, the district court
1
The McCullough firm contends that the record “does not indicate whether the
garnishment action was a wage garnishment [against Ray’s employer] or a bank garnishment
[against Ray’s bank].” Ray contends that it was a bank garnishment action. Because the
outcome of this case does not depend on that issue, we will assume without deciding that Ray’s
bank was the defendant in the garnishment action.
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dismissed Ray’s complaint, concluding that the FDCPA’s venue provision does not
apply to garnishment actions under Georgia law because the provision applies only
to legal actions “against any consumer” and a garnishment action is against the
garnishee, not the consumer. Ray appeals the district court’s dismissal, which we
review de novo. See Robbins v. Garrison Prop. & Cas. Ins. Co., 809 F.3d 583,
585–86 (11th Cir. 2015).
The only question in this case is whether the FDCPA’s venue provision
applies to post-judgment garnishment proceedings. The McCullough firm
maintains that this Court has already decided that question in Pickens v. Collection
Services, 273 F.3d 1121 (11th Cir. 2001) (unpublished table decision). In that
case, the district court concluded that the FDCPA’s venue provision does not apply
to Georgia garnishment actions and we affirmed without opinion under 11th
Circuit Rule 36-1, which has since been repealed. See id.; Pickens v. Coll. Servs.
of Athens, Inc., 165 F. Supp. 2d 1376, 1380–81 (M.D. Ga. 2001). The firm asserts
that “the Eleventh Circuit affirmation in Pickens is binding authority on this
panel.” That could not be more wrong. In this Court, unpublished decisions, with
or without opinion, are not precedential and they bind no one. See 11th Cir. R. 36-
2 (“Unpublished opinions are not considered binding precedent . . . .”); United
States v. Irey, 612 F.3d 1160, 1215 n.34 (11th Cir. 2010) (“Unpublished opinions
are not precedential . . . .”); U.S. Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1280
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n.3 (11th Cir. 2001) (“An affirmance pursuant to Rule 36-1 has no precedential
value.”); Va. Props., Inc. v. Home Ins. Co., 74 F.3d 1131, 1132 n.2 (11th Cir.
1996) (explaining that when a panel affirms without opinion under Rule 36-1, the
decision “will have no precedential value”) (quotation marks omitted). And, of
course, district court opinions are not binding on us either. See Pereda v.
Brookdale Senior Living Cmtys., Inc., 666 F.3d 1269, 1273 n.7 (11th Cir. 2012).
No binding precedent answers the question whether the FDCPA’s venue provision
applies to Georgia garnishment proceedings.
Three other circuits have answered that question as it pertains to the laws of
other states. The First Circuit did so in Smith v. Solomon & Solomon, PC, 714
F.3d 73 (1st Cir. 2013), which involved post-judgment enforcement proceedings
under Massachusetts’ trustee process. Like the McCullough firm, the law firm in
Smith obtained a judgment against a consumer in the judicial district in which the
consumer resided and then, about ten months later, it filed a collection action in
another district against a “trustee” (in that case, the consumer’s employer), seeking
to attach the consumer’s wages to satisfy the judgment. Id. at 74. The consumer
filed suit, alleging that the law firm’s second action violated the FDCPA’s venue
provision. Id. While the parties agreed that “the FDCPA venue provision applies
only to legal actions brought ‘against any consumer,’” they disputed “whether a
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post-judgment enforcement proceeding . . . qualifies as a legal action ‘against any
consumer.’” Id. at 75 (quoting 15 U.S.C. § 1692i(a)).
To answer that question, the Smith court looked to the state statutes and
rules that governed Massachusetts’ trustee process. The statute required the
judgment-creditor to file the collection action in the county in which the trustee or
employer (not the consumer) was located, and the rules required the judgment
creditor to direct the summons to the trustee or employer (not the consumer) and
required the trustee or employer (not the consumer) to respond. Id. at 75–76. The
First Circuit found that although the consumer had an interest in the proceedings
and the statute allowed her to request a change of venue, “[f]undamentally . . . a
Massachusetts trustee process action is geared toward compelling the trustee to act,
not the debtor.” Id. at 76. For those reasons, the First Circuit concluded that
because post-judgment enforcement proceedings under Massachusetts law did not
qualify as a legal action “against the consumer,” the FDCPA venue provision did
not apply to them. Id. at 76–77.
The Eighth Circuit reached the same result in Hageman v. Barton, 817 F.3d
611 (8th Cir. 2016), which involved post-judgment enforcement proceedings under
Illinois law. Like the firms in this case and in Smith, the law firm in Hageman first
obtained a judgment against the consumer in Missouri state court and then, several
months later, initiated garnishment proceedings in Madison County, Illinois. Id. at
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612–13. The consumer sued the law firm, contending, among other things, that the
firm violated the FDCPA’s venue provision by bringing the garnishment action in
a judicial district “where [he] neither worked nor resided and which bore no
relationship to the underlying debt.” Id. at 617. The Eighth Circuit explained that
“[t]he [FDCPA’s] venue restriction . . . applies only to legal actions ‘on a debt
against any consumer,’” which means that “the applicability of [the provision]
depends upon whether . . . the garnishment proceedings pursuant to Illinois law are
legal actions ‘against any consumer.’” Id. (quoting 15 U.S.C. § 1692i(a)).
Following the First Circuit’s lead, the Eighth Circuit looked to the state
statutes governing Illinois’ garnishment proceedings. Like Massachusetts, Illinois
required the judgment-creditor to direct its summons against the consumer’s
employer (not the consumer) and required the employer (not the consumer) to
respond to and comply with any garnishment order. Id. at 618. Based on that, the
Eighth Circuit concluded that because a post-judgment garnishment action under
Illinois law “did not amount to an action ‘against the consumer,’” the FDCPA’s
venue provision did not apply to it. Id. at 617.
Only one circuit has reached a contrary result. In Fox v. Citicorp Credit
Services, Inc., 15 F.3d 1507, 1515 (9th Cir. 1994), the Ninth Circuit held that the
FDCPA’s venue provision applied to post-judgment garnishment proceedings
under Arizona law. That decision did not, however, discuss the “against any
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consumer” language in the FDCPA or whether its venue provision applied to
actions directed at third parties rather than consumers. As such, it has little
persuasive value. See Smith, 714 F.3d at 76–77; Hageman, 817 F.3d at 618.
In this case, the question is whether the FDCPA’s venue provision applies to
post-judgment garnishment proceedings under Georgia law. As the First and
Eighth Circuits have correctly explained, the FDCPA’s venue provision applies
only to legal actions “against any consumer.” 15 U.S.C. § 1692i(a); see Smith, 714
F.3d at 75; Hageman, 817 F.3d at 617. That is what its words say and what its
words mean. As a result, whether the provision applies to Georgia garnishment
proceedings depends on whether those proceedings are legal actions “against any
consumer.”
The answer to that question is not difficult. We know that a Georgia
garnishment proceeding is not an action against a consumer because Georgia law
tells us as much. The garnishment process in Georgia requires the judgment-
creditor to direct its summons to the garnishee (not the consumer), Ga. Code § 18-
4-8(a), and it requires the garnishee (not the consumer) to file an answer, Ga. Code
§ 18-4-10(a). Not only that, but the governing statute specifically provides that
“[a] garnishment proceeding is an action between the plaintiff [judgment-creditor]
and garnishee.” Ga. Code § 18-4-15(a). Although the consumer “may become a
party to the garnishment by filing a claim with the clerk of court,” id., the process
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is fundamentally an action against the garnishee, not the consumer. For that
reason, the FDCPA’s venue provision does not apply to post-judgment
garnishment proceedings under Georgia law and Ray’s FDCPA claim therefore
fails.
Ray contends that we should not adopt this interpretation for several reasons.
He first argues that this reading fails as a matter of statutory construction. By its
terms, the FDCPA’s venue provision applies only to a “legal action on a debt
against any consumer.” 15 U.S.C. § 1692i(a). Ray asserts that, under the last-
antecedent canon, the phrase “against any consumer” modifies only the term
“debt” and not the term “legal action.” If he is correct, the venue provision would
apply to “any legal action on a debt,” whether or not that action is against a
consumer or some other third party, provided that the debt is “against any
consumer.” Under that construction, the venue provision would apply to a Georgia
garnishment proceeding because it is a “legal action” concerning “a debt against
any consumer.”
We reject that tortured reading of the statute. To begin with, Ray invokes
the wrong canon of construction. Because the statutory clause at issue here does
not contain any pronouns and, “[s]trictly speaking, only pronouns have
antecedents,” the last-antecedent canon does not apply. Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 152 (2012); see also
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Lockhart v. United States, 577 U.S. ___, 136 S. Ct. 958, 970 (2016) (Kagan, J.,
dissenting). The more appropriate canon is the nearest-reasonable-referent canon,
which “also applies to adjectives, adverbs, and adverbial or adjectival phrases.”
Scalia & Garner, Reading Law at 152. That canon provides that “a prepositive or
postpositive modifier normally applies only to the nearest reasonable referent.” Id.The FDCPA’s venue provision contains two such modifiers: “on a debt” and
“against any consumer.” The reason the second one does not modify the first one
is because “on a debt” is itself a prepositional phrase that modifies its nearest
referent, “any legal action.” See id. at 153. Under the nearest-reasonable-referent
canon, “against any consumer” modifies “legal action,” and the FDCPA venue
provision applies only to a “legal action . . . against any consumer.”
Ray also argues that our reading of the FDCPA fails as a matter of policy.
One purpose of the statute’s venue provision is to prevent debt collectors from
filing suits in distant and inconvenient forums, thereby depriving consumers of the
opportunity to defend themselves against debt-collection lawsuits. See Smith, 714
F.3d at 76 (citing S. Rep. No. 95-382 at 5 (1977), reprinted in 1977 U.S.C.C.A.N.
1695, 1699). Ray asserts that excluding post-judgment garnishment proceedings
from the FDCPA’s coverage undermines that purpose. As the First Circuit
explained in Smith, however, the concern that a consumer will lose his opportunity
to defend himself from a debt-collection lawsuit “is not present in the case of a
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post-judgment proceeding.” Id. That is because “[t]he original suit to collect on
the debt occurred in a forum that was convenient for [the consumer],” the
consumer “had an opportunity to defend against it,” and the consumer was not
“denied [his] day in court.” Id. (quotation marks omitted).
The Federal Trade Commission’s reading of the FDCPA supports this
reasoning. See Smith, 714 F.3d at 76; Hageman, 817 F.3d at 618. The
Commission’s commentary provides, “If a judgment has been obtained from a
forum that satisfies the requirements of this section, a debt collector may bring suit
to enforce it in another jurisdiction.” Statements of General Policy or
Interpretation Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed.
Reg. 50,097, 50,101 (Dec. 13, 1988). That interpretation makes sense, the
Commission noted, “because the consumer previously has had the opportunity to
defend the original action in a convenient forum.” Id. at 50,109. Although that
commentary does not bind us, we accord it “considerable weight.” Hawthorne v.
Mac Adjustment, Inc., 140 F.3d 1367, 1372 n.2 (11th Cir. 1998).
Finally, Ray argues that our reading of the FDCPA fails as a matter of
federalism. He asserts that the meaning of federal law should not hinge on state-
law definitions and that our interpretation must instead “begin and end with the
text of the federal law.” Not always, and not here. “Although federal law governs
the interpretation of a federal statute,” federal law sometimes “adopts state law as
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the federal rule of decision.” In re Prudential of Fla. Leasing, Inc., 478 F.3d 1291,
1298 (11th Cir. 2007). And in interpreting a federal statute, we may look to state
law when “a national rule is unnecessary to protect the federal interests underlying
[a statutory scheme].” United States v. Kimbell Foods, Inc., 440 U.S. 715, 718, 99
S. Ct. 1448, 1453 (1979).
As we have already explained, our interpretation of the venue provision is
consistent with the statute’s purpose. Under our reading, a debt collector must still
bring its original action against the consumer in a venue prescribed by the FDCPA.
Once it has obtained a judgment, however, the debt collector may bring an action
in another jurisdiction to enforce it. That statutory scheme affords the consumer an
opportunity to defend himself against the original action in a convenient forum.
Because a national rule in this context is unnecessary to ensure that opportunity, it
is appropriate to look to state law to determine whether a state’s post-judgment
enforcement proceedings are “against any consumer” for the purposes of the
FDCPA.
AFFIRMED.
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