                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 15a0357n.06

                                           No. 14-3514
                                                                                    FILED
                                                                              May 12, 2015
                              UNITED STATES COURT OF APPEALS              DEBORAH S. HUNT, Clerk
                                   FOR THE SIXTH CIRCUIT

JAMIE MICHALAK,                                             )
                                                            )   ON APPEAL FROM THE
       Plaintiff-Appellant,                                 )   UNITED STATES DISTRICT
                                                            )   COURT     FOR     THE
v.                                                          )
                                                            )   NORTHERN DISTRICT OF
LVNV FUNDING, LLC,                                          )   OHIO
                                                            )
       Defendant-Appellee.                                  )
                                                            )
                                                            )   OPINION



       BEFORE:         DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. On November 8, 2013, Jamie Michalak

filed a class action complaint alleging that LVNV Funding, LLC (“LVNV”) violated the Fair

Debt Collection Practices Act (“FDCPA”). “Beginning on or about May 2012,” the complaint

claims, “LVNV sent multiple dunning letters to Ms. Michalak by way of various agents.”

Compl. ¶ 9. “In each dunning letter, LVNV claimed a different amount . . . due,” id. ¶ 10, and

each new amount was “inconsistent, erratic, and arbitrary,” id. ¶ 11. According to the complaint,

“LVNV had no right in contract or law” to collect these amounts. Id. ¶ 12. As to the class, the

complaint seeks recovery on behalf of Michalak and “all consumers who have been dunned by

LVNV for amounts to which LVNV has no[] right in contract or law, for the one-year period

preceding the date of filing” of the complaint. Id. ¶ 18.
No. 14-3514, Michalak v. LVNV Funding, LLC


       LVNV moved to dismiss the complaint for failure to state a claim and as barred by the

FDCPA’s statute of limitations, 15 U.S.C. § 1692k(d), which allows courts to enforce only those

actions brought “within one year from the date on which the violation occurs.” To its motion

LVNV attached three dunning letters to Michalak, all showing dates in May 2012 or earlier. The

district court granted the motion over Michalak’s objection, relying on LVNV’s letters to hold

Michalak’s claim time-barred.

       Michalak appeals that decision, and LVNV, for its part, asks us to affirm not only on

limitations grounds but also because the complaint fails to allege a plausible violation of the

FDCPA. We agree with Michalak’s view, and we now reverse.

                                              I.

       We review de novo a dismissal under Rule 12(b)(6), accepting all factual allegations as

true and construing the complaint favorably to the plaintiff. Conlon v. InterVarsity Christian

Fellowship, 777 F.3d 829, 832 (6th Cir. 2015). “Generally, a motion under Rule 12(b)(6), which

considers only the allegations in the complaint, is an ‘inappropriate vehicle’ for dismissing a

claim based upon a statute of limitations.” Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d

459, 464 (6th Cir. 2013) (quoting Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir.

2012)). And that is because a plaintiff has no obligation under Rule 8 to plead compliance with

the statute of limitations. Cf. Jones v. Bock, 549 U.S. 199, 212–15 (2007). Instead, the burden

of pleading, and proving, the affirmative defense of § 1692k(d) rests with the defendant. See

Fed. R. Civ. P. 8(c)(1).

       Dismissal can be appropriate, though, if the “allegations in the complaint affirmatively

show that the claim is time-barred.” Cataldo, 676 F.3d at 547 (emphasis added). But that is not

the case here.    The complaint states that Michalak received dunning letters from LVNV



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No. 14-3514, Michalak v. LVNV Funding, LLC


“[b]eginning on or about May 2012,” roughly a year-and-a-half before she sued. Compl. ¶ 9.

That suggests that recovery on one dunning letter is time-barred. As both parties acknowledge,

however, each dunning letter may constitute a separate violation of the FDCPA. See Purnell v.

Arrow Fin. Servs., LLC, 303 F. App’x 297, 301–02 (6th Cir. 2008); accord Solomon v. HSBC

Mortg. Corp., 395 F. App’x 494, 497 n.3 (10th Cir. 2010). We can clearly infer from the use of

the word “[b]eginning” that Michalak continued to receive dunning letters past May 2012

through some unspecified time. So the complaint does not conclusively establish LVNV’s

affirmative defense as to all of its letters, or how many such letters exist. If anything, we can

infer from the description of the class as consumers with timely claims, and the complaint’s

inclusion of Michalak in that class, that she received at least one dunning letter on November 8,

2012 or later.

         Nor was dismissal appropriate on the strength of the letters that LVNV attached to its

motion. Perhaps those letters will help LVNV prevail upon a motion for summary judgment.

But here, before discovery, Michalak had no duty to “respond to a motion to dismiss with

affirmative matter raising a triable issue of fact on an affirmative defense.” Rembisz v. Lew, 590

F. App’x 501, 504 (6th Cir. 2014). It should also go without saying that LVNV has every reason

to proffer only untimely letters in support of its motion. The district court therefore erred in

dismissing the complaint as time-barred.1

                                                         II.

         For the reasons set forth above, we reverse and remand for further proceedings consistent

with this opinion.




         1
          We leave it for the district court to decide in the first instance whether Michalak’s complaint should be
dismissed for other reasons.

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