                                          No. 05-238

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2006 MT 97N



ALLISON CHAPMAN,

              Plaintiff and Appellant,

         v.

CREDIT ASSOCIATES, INC.,

              Defendant and Respondent.




APPEAL FROM:         The District Court of the Eighth Judicial District,
                     In and For the County Cascade, Cause No. DDV 2004-939,
                     Honorable Dirk M. Sandefur, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Allison Chapman, pro se, Geraldine, Montana

              For Respondent:

                     Dirk Larsen, Larsen Law Firm, Great Falls, Montana



                                                       Submitted on Briefs: April 5, 2006

                                                                 Decided: May 9, 2006
Filed:


                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2    On June 26, 2000, and again on May 24, 2002, Allison Chapman (Chapman)

received medical care at a Benefis Healthcare, Inc. (Benefis) facility in Great Falls,

Montana. Dissatisfied with the treatment (which allegedly exacerbated the physical

conditions that had prompted Chapman’s visits), Chapman refused to pay for the

services. Following unsuccessful efforts to collect payment from Chapman, Benefis

retained Credit Associates, Inc. (Credit Associates), which on June 12, 2003, mailed

Chapman a collection letter. Chapman replied in a letter dated June 19, 2003, stating that

she would not be paying anything on the debt and demanding, pursuant to the Fair Debt

Collection Practices Act (FDCPA), see 15 U.S.C. §§ 1692-1692o, that Credit Associates

“cease any and all communication with me.”

¶3    Credit Associates received Chapman’s cease and desist letter the next day (June

20, 2003). Notwithstanding, it mailed a second letter to Chapman on June 23, 2003,

enclosing verification data that it claims it was obligated to send her pursuant to the

FDCPA (see 15 U.S.C. § 1692g(a)).           Then, on July 15, 2003, counsel for Credit

Associates sent Chapman another letter, this time informing her that his firm had been


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employed to collect from her the balance due on her account.          In addition, Credit

Associates allegedly contacted Chapman by telephone on two separate occasions between

June 12, 2003, and July 15, 2003, demanding immediate payment under threat of

litigation. (Credit Associates denies that it made these calls.)

¶4     Three lawsuits have been filed based on the foregoing events. First, on or about

September 8, 2003, Credit Associates filed suit in the Chouteau County Justice Court

(Cause No. 03-CV-6803, Credit Associates, Inc. v. Allison Chapman) seeking a judgment

against Chapman in the amount of $405.65. Chapman filed an Answer on or about

October 21, 2003, in which she denied liability, raised the FDCPA as an “affirmative

defense,” and moved to dismiss the action. The Justice Court denied her motion; the

action proceeded to a bench trial on January 15, 2004; and on January 20, 2004, the court

entered judgment in favor of Credit Associates. Chapman thereafter filed an appeal with

the District Court; however, she did not file an undertaking as required by § 25-33-

201(1), MCA. Thus, her appeal was dismissed on July 8, 2004.

¶5     Meanwhile, on October 2, 2003, while the action in Justice Court was pending,

Chapman, appearing pro se, filed a complaint in the United States District Court for the

District of Montana (Cause No. CV-03-136-GF-CSO, Allison Chapman v. Credit

Associates, Inc.), alleging that Credit Associates had violated the FDCPA by attempting

to collect on the debt to Benefis after receipt of Chapman’s June 19, 2003, letter. On

August 2, 2004, Chapman filed a motion to dismiss the action without prejudice,

indicating that she would be re-filing the suit in state court. Credit Associates filed no

opposition, and the court granted the motion on September 1, 2004.


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¶6    Also on August 2, 2004, Chapman, again appearing pro se, filed the instant action

against Credit Associates in the District Court for the Eighth Judicial District, Cascade

County. In her complaint, she alleged that the post-June 19, 2003, communications by

Credit Associates concerning the Benefis debt violated the FDCPA, and she requested

damages under 15 U.S.C. § 1692k.1

¶7    On January 18, 2005, Credit Associates filed a Motion for Summary Judgment

pursuant to Rule 56, M.R.Civ.P., arguing that its communications did not violate the

FDCPA and that, even if its communications did violate the FDCPA, Chapman’s claim

was barred by the applicable statute of limitations and also by the doctrine of res

judicata. The District Court heard oral arguments on February 23, 2005, and on March 9,

2005, granted the motion. The court explained that of the communications alleged by

Chapman to have violated the FDCPA, the most recent occurred on July 15, 2003. Thus,

when Chapman filed her complaint on August 2, 2004, she was fifteen days beyond the

one-year statute of limitations for claims under the FDCPA. See 15 U.S.C. § 1692k(d).

The court also rejected Chapman’s suggestion that by commencing the FDCPA action in

state court on the same day that she moved to dismiss the FDCPA action in federal court,



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        Chapman also named Benefis as a defendant. She alleged that Benefis had
breached two medical services contracts by failing to properly care for her on the two
separate occasions discussed above, for which she sought $25,000 in damages. On
November 16, 2004, the District Court dismissed Benefis from the case pursuant to Rule
12(b)(6), M.R.Civ.P., reasoning that Chapman’s breach of contract claim was, in essence,
a claim of medical malpractice as defined by § 27-6-103(5), MCA, and, as such, it had to
be submitted for review under the Montana Medical Legal Panel Act prior to her filing a
complaint in a district court, see § 27-6-301, MCA. Chapman does challenge this
dismissal on appeal.


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the federal and state court actions were one continuous action (that related back to the

earlier filing date of the federal action). This appeal followed.

¶8     Where Congress has expressly set a limitations period on a federal claim, state

statutes of limitations, including state tolling provisions, do not apply. See Brown v.

Hartshorne Public School Dist. No. 1 (10th Cir. 1991), 926 F.2d 959, 961 (“When

Congress has provided a federal statute of limitation for a federal claim, . . . state tolling

and saving provisions are not applicable.”). Rather, “[t]he Congressional statute of

limitation is definitive.” Holmberg v. Armbrecht (1946), 327 U.S. 392, 395, 66 S.Ct.

582, 584, 90 L.Ed. 743, 746.        With respect to actions brought under the FDCPA,

Congress has set the limitations period at one year. See 15 U.S.C. § 1692k(d) (“An

action to enforce any liability created by this subchapter may be brought . . . within one

year from the date on which the violation occurs.”). Thus, as the District Court reasoned,

Chapman’s action—filed on August 2, 2004, more than one year after the last allegedly

unlawful communication on July 15, 2003—is procedurally barred.

¶9     Chapman maintains that the instant action was filed on December 3, 2003, well

within the one-year statute of limitations. (This date presumably derives from the United

States District Court’s Order, issued on December 3, 2003, to serve Chapman’s

complaint on Credit Associates.) She reasons that the action “was dismissed without

prejudice by order of the United States District Court, without objection by Credit

Associates Inc.,” and “was refiled in state court within the time allowed by law, therefore

this suit was not barred by statute of limitations.”




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¶10    Chapman’s argument, however, depends on the mistaken premise that her action

filed in the United States District Court and her action filed in the Montana Eighth

Judicial District Court are the same action—ostensibly because both actions involve a

claim against Credit Associates under the FDCPA, and because she filed a motion to

dismiss the former action on the same day that she filed the complaint in the latter action.

To the contrary, her federal and state actions are distinct.      Notably, they coexisted

between August 2, 2004 (when she filed the complaint in the Eighth Judicial District

Court) and September 1, 2004 (when the United States District Court dismissed her

federal action). It is also noteworthy that the state action involved a claim (against

Benefis) that had not been raised in the federal action. In any event, actions are not

transferable between these two independent court systems in the manner suggested by

Chapman. Cf. 28 U.S.C. § 1441 (providing for the removal and remanding of certain

actions between state and federal courts, which does not apply to Chapman’s situation).

¶11    Furthermore, an action filed in federal court and then voluntarily dismissed—as

was Chapman’s federal action—is treated as if it had never been filed. See Beck v.

Caterpillar Inc. (7th Cir. 1995), 50 F.3d 405, 407. “[A]s a general rule, a voluntary

dismissal without prejudice leaves the parties as though the action had never been

brought. In the absence of a statute to the contrary, the limitation period is not tolled

during the pendency of the dismissed action.”2        Brown, 926 F.2d at 961 (citations


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          The same is true under § 27-2-407, MCA, on which the District Court and Credit
Associates relied. This provision states that “[i]f an action is commenced within the time
limited therefor and a judgment therein is reversed on appeal without awarding a new
trial or the action is terminated in any other manner than by a voluntary discontinuance, a

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omitted). Thus, FDCPA’s one-year limitation period was not tolled by the pendency of

Chapman’s FDCPA claim filed in the United States District Court.

¶12   In light of the foregoing discussion, the statute of limitations issue is dispositive of

Chapman’s appeal. Because this issue is clearly controlled by settled federal law, we

have determined to decide this case pursuant to Section I, Paragraph 3(d) of our 1996

Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions.

¶13   Affirmed.


                                                  /S/ W. WILLIAM LEAPHART


We concur:

/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS




dismissal of the complaint for neglect to prosecute the action, or a final judgment upon
the merits, the plaintiff . . . may commence a new action for the same cause after the
expiration of the time so limited and within 1 year after such a reversal or termination.”
Section 27-2-407, MCA (emphasis added).


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