In Cutler ex rel. Jay v. Sallie Mae, Inc., 2015 WL 1909482 (C.D. Cal. 2015), Judge Fitzgerald found that the FDCPA’s “continuing violation” doctrine did not apply to exempt a Plaintiff’s FDCPA claims from the FDCPA’s 1-year statute of limitations.
Determining whether the statute of limitations bars a FDCPA and/or RFDCPA claim depends on an analysis of the type of conduct alleged. Generally, “a limitations period begins to run when the plaintiff knows or has reason to know of the injury which is the basis of the action. Magnum v. Action Collection Serv., Inc., 575 F.3d 935, 940 (9th Cir.2009). “Certain kinds of acts prohibited by the FDCPA and the Rosenthal Act, e.g., a phone call at midnight, or a threatening call to a consumer’s employer, are discrete acts,” and thus the statute of limitations runs from the point at which the plaintiff has reason to know of these acts. Joseph v. J.J. Mac Intyre Co., L.L.C., 281 F.Supp.2d 1156, 1161 (N.D.Cal.2003). Other prohibited acts, however, involve repeated conduct. Id. For example, “claims of a pattern of debtor harassment consisting of a series of calls cannot be said to occur on a particular day,” but rather “constitutes a continuing pattern and course of conduct.” Id. “If there is a pattern, then the suit is timely if ‘the action is filed within one year of the most recent date on which the defendant is alleged to have violated the FDCPA’, and the entire course of conduct is at issue.” Id. However, “[n]ew communications … concerning an old claim … [do] not start a new period of limitations.” Nutter v. Messerli & Kramer, P.A., 500 F.Supp.2d 1219, 1223 (D.Minn.2007) (citing Campos v. Brooksbank, 120 F.Supp.2d 1271, 1274 (D.N.M.2000)). In Nutter, the defendants sought to collect a debt that the plaintiffs argued had already been paid, and the District of Minnesota concluded that the defendants’ statements concerning the status of this debt were merely new communications concerning an old claim, and therefore did not start a fresh statute of limitations period. Id. Similarly, in Wilhelm v. Credico, Inc., 455 F.Supp.2d 1006, 1008–09 (D.N.D.2006), the plaintiff argued that the defendant continued to issue a credit report regarding a disputed debt after being notified that the debt was disputed, and the district court concluded that the claim was barred because the statute of limitations accrued shortly after the plaintiff gave notice to the defendant that the debt was disputed. The Court notes that this doctrine is not well established and has been inconsistently applied in different districts. The Court nevertheless finds the cases above persuasive as to the proper application of this doctrine. To accept Plaintiff’s theory that the allegations here constitute a “continuing pattern” of conduct just because Navient continues to record this debt in Plaintiff’s credit report would allow Plaintiff’s “cause of action [to] be kept alive indefinitely because each new communication would start a fresh statute of limitations.” Sierra v. Foster & Garbus, 48 F.Supp.2d 393, 395 (S.D.N.Y.1999) (concluding that an FDCPA claim arising from four letters the defendant sent demanding attorneys’ fees in connection with debt-collection efforts was time barred because the letters did not constitute a “continuing violation”). “This is not a case where defendants have sent a series of threatening letters, each of which violate the FDCPA and only some of which are time-barred.” Sierra, 48 F.Supp.2d at 395. Rather, the FDCPA / RFDCPA claim here arises from just a single event—Navient’s decision that Cutler can be bound as a cosignor of the loan. It is undisputed that Plaintiff was aware by November 23, 2011, that Navient had finished its internal investigation and would hold Cutler responsible for the loan as a cosignor. However, Plaintiff did not file her Complaint alleging that this determination was in violation of the FDCPA / RFDCPA until November 21, 2013. The Court thus concludes that Plaintiff’s claims against Sallie Mae under the FDCPA and the RFDCPA are barred by the statute of limitations, and therefore does not address the substance of these claims.