Summary
In Meredith v. Unifund CCR Partners, No. 2:08-CV-375-MEF, 2008 WL 4767523 (M.D. Ala. Oct. 29, 2008), the defendants were Northern District of Alabama residents who attempted to collect a debt from the plaintiff by mailing letters to his residence in the Middle District.
Summary of this case from Lary v. Doctors Answer, LLCOpinion
CASE NO. 2:08-cv-375-MEF, (WO — Do not publish).
October 29, 2008
MEMORANDUM OPINION AND ORDER
This cause is before the Court on Defendant's Motion to Dismiss or in the Alternative, Motion for Change of Venue (Doc. # 9), which Plaintiff has opposed. Alleging violations of the Fair Debt Collection Practices Act (FDCPA), Plaintiff filed his lawsuit in the United States District Court for the Middle District of Alabama. Plaintiff's complaint specifically alleges that venue is appropriate in this Court pursuant to 28 U.S.C. § 1391(b)(2). See Compl. at ¶ 3. Two of the Defendants have claimed that venue is improper in this district and urged the Court to either dismiss the case or to transfer it to the United States District Court for the Northern District of Alabama, a district where they contend venue is appropriate. Because the Court finds that venue is appropriate in this district, the motion is due to be DENIED.
BACKGROUND
According to the allegations of the Complaint (Doc. # 1), Defendants are all engaged in the business of collecting debts. Plaintiff alleges that Defendants made repeated efforts to collect a debt from him that he does not owe and that he had formally disputed. Plaintiff resides in Montgomery, Alabama, a city within the Middle District of Alabama. Two of the Defendants are foreign corporations engaged in the business of buying, selling, and collecting unpaid debts: Centurion Capital Corporation ("Centurion") and Unifund CCR Partners ("Unifund"). The remaining two Defendants are a lawyer, Sandra Simpson ("Simpson"), and her employer, the law firm, Zarzaur Schwartz, P.C. ("the Z S firm"), located in Birmingham, Alabama.
Birmingham, Alabama is a city within the Northern District of Alabama.
Plaintiff alleges that he received letters from Centurion and the Z S firm, in 2007, seeking to collect a debt which he was alleged to owe. Plaintiff also claims he received a telephone call regarding this alleged debt from either Centurion or the Z S firm. Plaintiff contends that he disputed the debt. On May 21, 2007, Simpson filed a lawsuit against Plaintiff on behalf of Centurion. This lawsuit was filed in the Montgomery County Small Claims Court, and it sought to collect the debt which Plaintiff was alleged to owe. Along with the Complaint, Simpson filed an affidavit in which she held herself out as a representative of Centurion and represented that Plaintiff was responsible for the debt they were attempting to collect. Plaintiff alleges that the affidavit contained inaccurate and misleading information about him. Plaintiff denied liability and sought discovery. On August 20, 2007, Simpson, acting on behalf of Centurion, moved to dismiss the lawsuit against Plaintiff in the Montgomery County Small Claims Court without prejudice. Plaintiff agreed to the dismissal of the action, but only if it would be with prejudice. The case was called for trial. Plaintiff and Simpson were present in the Small Claims Court in Montgomery County. The judge asked what evidence existed proving that Plaintiff owed the debt, and Simpson did not offer any. The judge dismissed the suit with prejudice on September 18, 2007.
On August 30, 2007, Unifund sent Plaintiff a dunning letter advising him that Unifund intended to collect the same debt that Centurion had been pursuing. On October 31, 2007, the Z S firm sent Plaintiff a letter advising him that it was now attempting to collect this debt on behalf of Unifund. No individual signed this letter. On December 3, 2007, Simpson, this time acting on behalf of Unifund, filed a second lawsuit against Plaintiff in the Montgomery County Small Claims Court, for the purpose of collecting the same debt which had been the subject of the prior action by Simpson on behalf of Centurion. The Z S firm then sent a letter to Plaintiff threatening to file the lawsuit which had already been filed in Montgomery. Against Plaintiff denied liability and asserted various defenses including res judicata. On December 18, 2007, Simpson sent Plaintiff a letter about this matter seeking to collect the debt and inviting him to discuss the matter so that it could be resolved without going to court. In this letter, Simpson indicated she was acting on behalf of Unifund. Plaintiff alleges that this letter contained materially false statements concerning the debt allegedly owed. Plaintiff retained a lawyer who confronted Simpson regarding the res judicata bar to the collection action. Thereafter, Simpson filed a motion asking the Small Claims Court of Montgomery County to dismiss the lawsuit with prejudice, which motion was granted. Plaintiff alleges harm arising out of these actions by the Defendants.
DISCUSSION
Under 28 U.S.C. § 1406(a), "[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." Where, as here, a civil action wherein subject matter jurisdiction is not founded on diversity of citizenship, venue is proper in: a judicial district where any defendant resides if all defendants reside in the same state; a judicial district "in which a substantial part of the events or omissions giving rise to the claim occurred" or a substantial part of the property subject of the action is situated; or a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b).In this case, Simpson and the Z S firm argue that the alleged violation of the FDCPA occurred in the Northern District of Alabama because they mailed debt demand letters, initiated telephone calls, and drafted and mailed the lawsuit from its offices in Birmingham, which is in the Northern District. Defendant cites Jenkins Brick Co. v. Bremer, which involved a suit by an employer against a former employee for breach of a noncompete clause of an employment contract. 321 F.3d 1366 (11th Cir. 2003). In Bremer, the plaintiff presented the employment contract to the defendant in Georgia, the defendant signed the contract in Georgia, the defendant's worked in Georgia, and defendant's work for the competitor that gave rise to the lawsuit occurred in Georgia. The Court concluded that the defendant's actions that gave rise to the suit "occurred only in Georgia."
In this case, many of the Defendants' actions that gave rise to Plaintiff's suit occurred in the Middle District. The Defendants twice sued the Plaintiff in Montgomery County and participated in court hearings there. Defendants cite no federal case to support their position that venue is proper in the Northern District because the mail that gave rise to the Montgomery County lawsuits originated from the Z S firm's offices in the Northern District. More persuasive than Defendants' arguments are those made by Plaintiff and the cases which Plaintiff cites. Including the federal cases that support the proposition that, in a case that arises from debt collection mail, venue is proper in the district where the debtor resides because the injury did not occur until the mail was received. See, e.g., Bates v. C S Adjusters, Inc., 980 F.2d 865, 868 (2d Cir. 1992); Bailey v. Clegg, Brush Assocs., Inc., No. 1:90-cv-2702-CAM, 1991 WL 143461 at *2 (N.D. Ga. June 14, 1991); Murphy v. Allen County Claims Adjustments, 550 F. Supp. 128, 130-31 (S.D. Ohio 1982); Gachette v. Tri-City Adjustment Bureau, 519 F. Supp. 311, 313-14 (N.D. Ga. 1981). The rationale behind these decisions applies to this case. Plaintiff did not suffer any injury until the mail that initiated the lawsuit was received in Montgomery County. Therefore, a "substantial part of the events" that gave rise to Plaintiff's claims occurred in the Middle District, and thus venue is proper here.
Accordingly, it is hereby ORDERED that Motion to Dismiss or in the Alternative, Motion for Change of Venue (Doc. # 9) is DENIED.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).