Summary
declining to transfer an action where plaintiff “did not alternatively move to transfer venue, let alone address the matter of transfer, in response to [defendant's] motion to dismiss pursuant to Rule 12(b). Indeed, [plaintiff] has not expressed whether, in the event the Court found personal jurisdiction to be lacking in the Commonwealth of Pennsylvania, he would prefer to assert his claims against [defendant] in an alternative forum”
Summary of this case from Yates v. KassemOpinion
CIVIL ACTION NO. 4:17-CV-02261
12-17-2018
BOB ESCREZA MOHLER, Plaintiff v. GOLDEN 1 CREDIT UNION, et al, Defendants
(CONNER, C.J.)
() REPORT AND RECOMMENDATION
Presently before the Court is a motion to dismiss filed by Defendant Golden 1 Credit Union (hereinafter referred to as "Golden 1" or the "Credit Union") on May 11, 2018. (Doc. 12). Golden 1 moves to dismiss the complaint, filed by pro se Plaintiff Bob Escreza Mohler ("Mohler") for alleged violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681s-2 et seq., under Rule 12(b)(2) of the FEDERAL RULES OF CIVIL PROCEDURE. (Doc. 1; Doc. 12). For the reasons provided herein, it is respectfully recommended that Golden 1's motion to dismiss (Doc. 12) be GRANTED IN PART and DENIED IN PART. I. BACKGROUND AND PROCEDURAL HISTORY
Mohler, proceeding pro se, initiated the above-captioned civil action for damages by the filing of a complaint against Golden 1, and certain unnamed individuals identified as Does 1-5 (the "Doe Defendants"), on December 11, 2017. (Doc. 1; Doc. 2). The same day, Mohler also filed a motion for leave to proceed in forma pauperis, which the Court granted on March 9, 2018. (Doc. 2; Doc. 7). Although the factual allegations in the complaint are somewhat sparse, the gravamen of Mohler's claims involve Golden 1's obligations under the FCRA.
To date, Mohler has failed to identify or serve the Doe Defendants, and no attorney of record has entered an appearance on their behalf.
The Court notes that, on the day Mohler initiated the instant action, Mohler filed a separate complaint against Bank of America, see Mohler v. Bank of America, 4:17-CV-2263 (M.D. Pa. filed Dec. 11, 2017), and Synchrony Bank, see Mohler v. Synchrony Bank, 4:17-CV-2260 (M.D. Pa. filed Dec. 11, 2017), which both contain substantially similar allegations and claims to those set forth in the instant pleading.
In the complaint, Mohler generally asserts that Golden 1 approved him for a credit union checking account sometime in January 2004. (Doc. 1, at 1). Thereafter, on or about November 1, 2005, Golden 1 additionally approved Mohler for a credit card account. (Doc. 1, at 1). Mohler claims that, from January 2004 until January 2015, he never made a late payment to Golden 1. (Doc. 1, at 1). However, Mohler alleges that, on an unspecified date, Golden 1 incorrectly reported to various credit agencies that he made a late payment in October 2015 (the "Late Payment"). (Doc. 1, at 1). Mohler additionally claims that a CheckSystems report conveyed "erroneous information" regarding the checking account he opened with Golden 1. (Doc. 1, at 2). Mohler disputed this information with Golden 1 twice via certified mail, and lodged a dispute regarding his Golden 1 credit history and accounts with the following national credit report agencies: Trans Union; Experian; Equifax, and CheckSystems. (Doc. 1, at 1-2). Nonetheless, Experian confirmed that the challenged information was "reporting correctly." (Doc. 1, at 2). Further, Golden 1 allegedly responded "oh we can't do anything about that we are required to report that information as required by the FCRA Fair Credit Reporting Act." (Doc. 1, at 2). As such, Mohler contends that this "inaccurate information" has appeared in his credit reports since January 2015. (Doc. 1, at 4).
The Court recognizes that there may be some discrepancy with the dates provided by Mohler in the complaint. Nonetheless, for the purposes of this Report and Recommendation, the Court refers to the dates set forth in the pleadings.
In his complaint, Mohler brings three counts against Golden 1 for violations under the FCRA. (Doc. 1, at 2-6). Specifically, Count I alleges that Mohler is a "consumer" pursuant to 14 U.S.C. § 1681a(c), and that Golden 1 is a "furnisher of information" for the purposes of 15 U.S.C. § 1681s-2. (Doc. 1, at 2). Mohler also seems to rely on provisions of 15 U.S.C. § 1681s-2(a) for the proposition that Golden 1 violated its obligation to conduct a proper investigation of the information that he disputed with the reporting agencies, and failed to review relevant information provided by Mohler. (Doc. 1, at 2-3). Further, Mohler cites to 15 U.S.C. § 1681n for willful noncompliance with the FCRA, and generally claims that Golden 1 "willfully and maliciously defamed [him] by repeatedly reporting information [] to various third parties i.e. the credit bureaus which it knew, or reasonably should have known, was false." (Doc. 1, at 4). As a result, Mohler states that his credit score and available lines of credit have been negatively impacted. (Doc. 1, at 4). Count II similarly relies on sections of 15 U.S.C. § 1681s-2 and 15 U.S.C. § 1681n, and seemingly seeks damages against Golden 1 in relation to reporting erroneous information to the credit bureaus. (Doc. 1, at 4-5). Count III finally cites to 15 U.S.C. § 1681o for negligent noncompliance with the FCRA, and requests damages from Golden 1. (Doc. 1, at 5-6). Given the alleged violations of the FCRA set forth in Counts I-III, Mohler additionally seeks relief in the form of removing all derogatory information from his credit reports, deleting the disputed account from his credit file, obtaining confirmation that the challenged information will not appear on his credit reports in the future, and providing any "amicable money settlement." (Doc. 1, at 6).
Golden 1 moved for dismissal of the complaint for lack of personal jurisdiction on May 11, 2018, and filed a brief in support thereof on May 14, 2018. (Doc. 12; Doc. 13). Mohler filed a brief in opposition on May 23, 2018. (Doc. 14). To date, Golden 1 has not filed a reply brief. As the time for filing a reply brief has now passed, Golden 1's motion is now ripe for disposition. II. DISCUSSION
A. RULE 12(B)(2) STANDARD
Rule 12(b)(2) of the FEDERAL RULES OF CIVIL PROCEDURE authorizes a defendant to move to dismiss a complaint for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). When raised as a jurisdictional defense, the plaintiff bears the burden of establishing the Court's personal jurisdiction over the moving defendant. D'Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009) (citing Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001)). Without holding an evidentiary hearing, the plaintiff meets this burden by establishing a prima facie case of personal jurisdiction, or "by 'establishing with reasonable particularity sufficient contacts between the defendant and the forum state.'" Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992) (quoting Provident Nat'l Bank v. California Fed. Sav. & Loan Ass'n., 819 F.2d 434 (3d Cir. 1987)); Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004). Further, "the ultimate burden remains on the plaintiff to demonstrate the existence of jurisdiction by a preponderance of the evidence." LaSala v. Marfin Popular Bank Pub. Co., Ltd., 410 F. App'x 474, 476 (3d Cir. 2011).
"[I]n reviewing a motion to dismiss under Rule 12(b)(2), [the Court] 'must accept all of the plaintiff's allegations as true and construe disputed facts in favor of the plaintiff.'" Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002) (citing Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 142 n. 1 (3d Cir. 1992)). "Once these allegations are contradicted by an opposing affidavit, however, [the] plaintiff must present similar evidence in support of personal jurisdiction." In re Chocolate Confectionary Antitrust Litig., 674 F. Supp. 2d 580, 595 (M.D. Pa. 2009). Indeed, the plaintiff will not be able to rely on the bare pleadings alone, and "must respond with actual proofs, not mere allegations." In re Chocolate Confectionary Antitrust Litig., 674 F. Supp. 2d at 595; Patterson ex rel. Patterson v. F.B.I., 893 F.2d 595, 604 (3d Cir. 1990) (quoting Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 67 n. 9 (3d Cir. 1984)). Thus, Courts may look beyond the pleadings when ruling on a motion brought under Rule 12(b)(2), as "[c]onsideration of affidavits submitted by the parties is appropriate and, typically, necessary." In re Chocolate Confectionary Antitrust Litig., 674 F. Supp. 2d at 595; Patterson, 893 F.2d at 603 ("A Rule 12(b)(2) motion ... is inherently a matter which requires resolution of factual issues outside the pleadings.") (quoting Time Share Vacation Club, 735 F.2d at 67 n. 9).
A Federal Court may exercise personal jurisdiction over a non-resident defendant to the extent permissible under the laws of the state in which the court sits. Mellon Bank (E.) PSFS, Nat. Ass'n v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992) (citation omitted). The forum state in this instance is Pennsylvania, and the applicable long arm statute is codified at 42 Pa. C.S.A. § 5322. Section (b) of the long-arm statute permits Pennsylvania courts to exercise personal jurisdiction over non-resident defendants "to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with [Pennsylvania] allowed under the Constitution of the United States." 42 Pa. C.S.A. § 5322(b). Further, as previously enumerated by this Court regarding corporations:
Pennsylvania law authorizes general personal jurisdiction over a corporation when the corporation carries on "a continuous and systematic part of its general business within this Commonwealth," 42 Pa. C.S.A. § 5301(a)(2)(iii), and authorizes specific jurisdiction over "all persons [including corporations] who are not within the scope of section 5301 ... to the fullest extent allowed under the Constitution of the United States [which] may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States," 42 Pa. C.S.A. § 5322(b).
Babyage.com, Inc. v. Ctr. for Envtl. Health, 90 F. Supp. 3d 348, 353 (M.D. Pa. 2015)
Thus, this Court may properly exercise jurisdiction over a non-resident defendant, so long as it does not violate their due process rights. See Mellon Bank, 960 F.2d at 1221.
With respect to the constitutional inquiry, the "Due Process Clause of the Fourteenth Amendment requires that nonresident defendants have 'certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" Kehm Oil Co. v. Texaco, Inc., 537 F.3d 290, 299-300 (3d Cir. 2008) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). "Having minimum contacts with another state provides 'fair warning' to a defendant that he or she may be subject to suit in that state." Kehm Oil, 537 F.3d at 299-300 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). As such, personal jurisdiction under the Due Process Clause depends upon "the relationship among the defendant[s], the forum, and the litigation." Shaffer v. Heitner, 433 U.S. 186, 204 (1977).
Further, there are two types of personal jurisdiction over non-resident defendants—general jurisdiction and specific jurisdiction. O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007). General jurisdiction may be asserted when a non-resident defendant has maintained "systematic and continuous contacts with the forum state." Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984)); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) ("A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so "continuous and systematic" as to render them essentially at home in the forum State.") (citing Int'l Shoe, 326 U.S. at 317). When subject to the general jurisdiction of a state, "that [defendant] can be called to answer any claim against [it], regardless of whether the subject matter of the cause of action has any connection to the forum." Mellon Bank, 960 F.2d at 1221. Thus, general jurisdiction requires that a defendant's contacts with the forum state be "of the sort that approximate physical presence." William Rosenstein & Sons Co. v. BBI Produce, Inc., 123 F. Supp. 2d 268, 274 (M.D. Pa. 2000) (quoting Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1086 (9th Cir. 2000), holding modified by Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199 (9th Cir. 2006).
On the other hand, "[s]pecific jurisdiction exists when the claim arises from or relates to [a defendant's] conduct purposely directed at the forum state." Marten, 499 F.3d at 296 (citing Helicopteros, 466 U.S. at 414-15 n. 9). To determine whether specific jurisdiction over a defendant exists, courts must engage in a three-part inquiry. O'Connor, 496 F.3d at 317. First, a court must consider whether a defendant "purposefully directed [its] activities" at the forum state. O'Connor, 496 F.3d at 317 (quoting Burger King, 471 U.S. at 472). Second, "the litigation must 'arise out of or relate to' at least one of those activities." O'Connor, 496 F.3d at 317 (quoting Helicopteros, 466 U.S. at 414). Third, if the prior requirements are met, "[a Court] may consider additional factors to ensure that exercising jurisdiction would be consistent with notions of 'fair play and substantial justice.'" O'Connor, 496 F.3d at 317 (quoting Burger King, 471 U.S. at 476).
B. THE CLAIMS AGAINST GOLDEN 1 ARE SUBJECT TO DISMISSAL FOR LACK OF PERSONAL JURISDICTION.
In its motion to dismiss, Golden 1 argues that this Court lacks personal jurisdiction over Mohler's claims. Specifically, Golden 1 asserts 42 Pa. C.S.A. § 5301(a)(2) does not allow for the exercise of jurisdiction over it in the forum state. (Doc. 13, at 4). Further, Golden 1 claims that Pennsylvania's Long-Arm Statute, codified at 42 Pa. C.S.A. § 5322(b), does not support the assertion of general or specific jurisdiction. (Doc. 13, at 5-12). In support of this basis for dismissal, Golden 1 provides the sworn affidavit of its Consumer Agency Reporting Program Manager, Opal Elizabeth Miller ("Ms. Miller"). (Doc. 12-2). Mohler's brief in opposition, however, wholly fails to respond to the argument for dismissal under Fed. R. Civ. P. 12(b)(2), and does not offer any evidence in support of exercising personal jurisdiction over Golden 1 in the Commonwealth of Pennsylvania. (Doc. 14).
Notably, Mohler's brief in opposition focuses on the pleading standards set forth in Rule 8 and Rule 12(b)(6) of the FEDERAL RULES OF CIVIL PROCEDURE, and argues in a conclusory fashion that the complaint survives Golden 1's motion to dismiss because it sufficiently state claims upon which relief can be granted. (Doc. 14, at 2-4).
Regarding general jurisdiction, Golden 1 asserts that it is a nonprofit mutual benefit corporation organized under the laws of the state of California. (Doc. 13, at 1). Golden 1 further affirms that its principal place of business in located in Sacramento, California, that it does not maintain any branch locations or facilities outside of the state of California, and that all, or substantially all, of its employees live and work in California. (Doc. 13, at 1-2, 11). Golden 1 also argues that Mohler cannot demonstrate it has such continuous and systematic contacts to render it "at home" in the forum state, as it: does not file tax returns in the Commonwealth of Pennsylvania; own or lease property in Pennsylvania; advertise in Pennsylvania; regularly purchase products or supplies in Pennsylvania; maintain a telephone number or address in Pennsylvania; or have any employees in Pennsylvania. (Doc. 13, at 11-12). For these reasons, Golden 1 states that it is not subject to the forum state's general jurisdiction.
In addition, Golden 1 contends that the complaint fails to allege any facts that would support a finding of specific jurisdiction. (Doc. 13, at 5). Golden 1 indicates that it maintains a restricted field of membership, and that it approved Mohler's credit union membership based on his status as a California student when he applied in 2004. (Doc. 13, at 6-7). As such, Golden 1 asserts that the formation of Mohler's credit union accounts had no connection to the forum state. (Doc. 13, at 9). Further, Golden 1 argues that it did not purposefully avail itself of the Commonwealth's jurisdiction, as Mohler unilaterally moved to Pennsylvania and decided to send his dispute letters to Golden 1 from within the forum state. (Doc. 13, at 9). Indeed, Golden 1 notes that the only actions Mohler alleges it undertook was reporting to third-party credit bureaus and responding to his mail, and highlights that the complaint fails to allege that it remitted any disbursements or payments to Mohler while he resided in the Commonwealth. (Doc. 13, at 9).
Upon careful review of the complaint and the brief in opposition, Mohler fails to set forth any evidence, let alone any well-plead factual allegations, that would suggest general or specific jurisdiction exists over Golden 1 in the forum state. While the Court must accept Mohler's allegations as true, and construe all disputed facts regarding personal jurisdiction in his favor, he must still show that the exercise of jurisdiction over Golden 1 is proper. See Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002); Mellon Bank (E.) PSFS, Nat. Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). Here, however, Mohler fails to dispute Golden 1's grounds for dismissal under Rule 12(b)(2). (Doc. 14). Further, even when liberally construed, he does not demonstrate "with reasonable particularity" that sufficient contacts exist between Golden 1 and the Commonwealth of Pennsylvania. See Mellon Bank, 960 F.2d at 1223; Scheier v. Memphis Light, Gas & Water Div., No. CIV.A.08-2164(FLW), 2009 WL 198126, at *3 (D.N.J. Jan. 23, 2009) (granting motion to dismiss under Fed. R. Civ. P. 12(b)(2) when plaintiff failed to put forth any evidence in support of general or specific jurisdiction, or even dispute defendant's assertion that the forum state lacked personal jurisdiction); see also Walden v. Fiore, 571 U.S. 277, 284 (2014) (noting that personal jurisdiction "must arise out of contacts that the 'defendant himself' creates with the forum State."). Thus, Mohler has failed to establish a prima facie case of general or specific jurisdiction.
C. TRANSFER OF THE CASE WOULD NOT BE IN THE INTEREST OF JUSTICE.
Although apparent that Mohler has failed to satisfy his burden of proving personal jurisdiction over Golden 1 in the Commonwealth of Pennsylvania, the Court nonetheless considers whether transferring the instant action to another forum is a proper alternative to dismissal. "It is longstanding policy in the Third Circuit to transfer cases to a proper forum when personal jurisdiction is in doubt." Boomer Dev., LLC v. Nat'l Ass'n of Home Builders of the United States, No. 1:16-CV-1414, 2016 WL 6563673, at *5 (M.D. Pa. Nov. 4, 2016). In this situation, courts within this Circuit have evaluated the propriety of transfer under both U.S.C. § 1406(a) and 28 U.S.C. § 1631. Prominent GmbH v. Prominent Sys., Inc., No. 2:16-CV-01609, 2017 WL 1316362, at *19-20 (W.D. Pa. Apr. 10, 2017). Generally, to effect transfer instead of dismissal, these statutes require: (1) the existence of an alternative forum in which the action could have been brought at the time of filing; and (2) that transferring the action be in the interest of justice. See 28 U.S.C. § 1406(a); 28 U.S.C. § 1631; see also Chavez v. Dole Food Co., Inc., 836 F.3d 205, 224 (3d Cir. 2016) (noting that the statutory directive of § 1406(a) and § 1631 is the same). Further, the Court's decision to effect transfer under e28 U.S.C. § 1406 or § 1631 is largely discretionary. See Doe v. Chiquita Brands Int'l, Inc., No. CV 07-3406 (JMV), 2018 WL 497322, at *2 (D.N.J. Jan. 19, 2018); see also Junge Wheeling Island Gaming, Inc., No. CIV.A. 10-1033, 2010 WL 4537052, at *7 (W.D. Pa. Nov. 2, 2010) ("Neither of the parties has requested [transfer under § 1631], but we conclude it is within our discretion to do so even in the absence of such a request.") (citing Chicosky Presbyterian Medical Center, 979 F.Supp. 316, 320-323 (D.N.J. 1997); Decker v. Dyson, 165 F. App'x 951, 954 (3d Cir. 2006) ("A district court has "broad discretion in deciding whether to order a transfer [pursuant 28 U.S.C. § 1406(a)].").
Courts within this Circuit are generally divided as to whether 28 U.S.C. § 1406(a) or 28 U.S.C. § 1631 properly permits transfer to remedy a lack of personal jurisdiction. See Belt v. Fed. Bureau of Prisons, No. CV1713582RBKAMD, 2018 WL 4404707, at *3 n. 1 (D.N.J. Sept. 17, 2018) ("[B]ecause courts are divided as to whether [§ 1631] permits transfer to cure a lack of personal jurisdiction, this Court determines that the appropriate statue for effectuating a possible transfer in this case — where personal jurisdiction is lacking — is § 1406(a)."); Rodriguez v. City of Philadelphia, No. CV 14-4435, 2018 WL 3036283, at *5 (E.D. Pa. June 18, 2018) ("'[T]he better view is that Section 1631 is limited to subject matter jurisdiction defects and does not address problems with personal jurisdiction or venue'...") (citing 15 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3842 (4th ed. 2015)); Blackstone v. Ortiz, No. CV168600RBKJS, 2018 WL 2148846, at *4 (D.N.J. May 9, 2018) (same); accord. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962) (holding that a lack of personal jurisdiction may be remedied by transfer pursuant to § 1406(a)); Lafferty v. St. Riel, 495 F.3d 72, 83 (3d Cir. 2007), as amended (July 19, 2007), as amended (Nov. 23, 2007) (noting "Goldlawr clarified that courts may use § 1406(a) to transfer cases involving defendants over whom they lack personal jurisdiction"); but see Chavez v. Dole Food Co., Inc., 836 F.3d 205, 224 (3d Cir. 2016) (noting that, when a district court finds that personal jurisdiction is lacking, the applicable transfer provision "is arguably not 28 U.S.C. § 1406(a), but rather 2 U.S.C. § 1631, , which governs transfer when there is 'a want of jurisdiction.'"); Boomer Dev., LLC v. Nat'l Ass'n of Home Builders of the United States, No. 1:16-CV-1414, 2016 WL 6563673, at *5 (M.D. Pa. Nov. 4, 2016) ("If a court lacks personal jurisdiction, it may enact transfer under § 1631 to avoid such damaging technicalities."); accord. D'Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 110 (3d Cir. 2009) (remanding case when district court dismissed an action for lack of personal jurisdiction without considering the propriety of transfer pursuant to § 1631). However, the statutory directive of § 1406(a) and § 1631 is essentially the same, Chavez, 836 F.3d at 224, and, under either provision, "the transferee court still must have personal jurisdiction over the defendant. Belt, 2018 WL 4404707, at *3.
In the case at bar, neither Mohler nor Golden 1 has raised the possibility of transfer pursuant to § 1406 or § 1631. Rather, Golden 1 moved to dismiss the complaint "with prejudice" for lack of personal jurisdiction. (Doc. 12, at 2). Further, Mohler did not alternatively move to transfer venue, let alone address the matter of transfer, in response to Golden 1's motion to dismiss pursuant to Rule 12(b)(2). (Doc. 14). Indeed, Mohler has not expressed whether, in the event the Court found personal jurisdiction to be lacking in the Commonwealth of Pennsylvania, he would prefer to assert his claims against Golden 1 in an alternative forum. See Modern Mailers, Inc. v. Johnson & Quin, Inc., 844 F. Supp. 1048, 1056 (E.D. Pa. 1994) ("If a plaintiff opposes [transfer under § 1406(a) when the court lacks personal jurisdiction over a defendant], the court has no purpose in forcing the plaintiff to litigate its claim in another court."); see also Carson Saleskit Software Corp., No. CIV. A. 94-3731, 1994 WL 702903, at *2 n. 4 (E.D. Pa. Dec. 13, 1994) (respecting plaintiff's autonomy to choose where to pursue his claims and declining to transfer action to another district in place of dismissal for lack of personal jurisdiction). Moreover, the Court recognizes, without expressly deciding, that Mohler may not be time-barred from bringing suit against Golden 1 in another jurisdiction as "[t]he FCRA is governed by a two-year statute of limitations, which begins to run 'not later than the earlier of—(1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability or (2) 5 years after the date on which the violation that is the basis for such liability occurs.'" Wirt von-Ton Stores, Inc., 134 F. Supp. 3d 852, 858 (M.D. Pa. 2015) (citing 5 U.S.C. § 1681p). Thus, upon careful consideration, there is nothing before the Court to suggest that transfer under § 1406 or § 1631 would be in the interest of justice, let alone desired by either Party in this case. See, e.g., Mellon Bank (E.) PSFS, Nat. Ass'n v. Farino, 960 F.2d 1217, 1223 n.3 (3d Cir. 1992) ("The district court may, in its discretion, transfer this case pursuant to 28 U.S.C. § 1631 if a motion to do so is seasonably filed."); Donohue v. Team Rensi Motorsports, LLC, No. CIV.A. 01-5564, 2002 WL 32341953, at *8 n. 3 (E.D. Pa. Oct. 10, 2002) (declining to transfer to another forum under § 1631 in deference to plaintiff's autonomy to choose his preferred forum and when plaintiff would not be time-barred from filing suit in another jurisdiction); Adelson v. Enter. Car Rental, No. CV172209KMJBC, 2017 WL 4538931, at *3 (D.N.J. Oct. 10, 2017) (declining to transfer the action to another forum sua sponte "in the absence of a motion directly addressing the relevant factors [under § 1406(a)] and requesting that relief."); Decker, 165 F. App'x at 954 (finding no abuse of discretion when district court declined to transfer the action under § 1406, as the plaintiffs did not move for transfer, or otherwise provide any reasons why transfer would be in the interest of justice). As such, the Court declines to exercise its discretion to transfer the action sua sponte.
A district court may address the appropriateness of transfer under either federal statute sua sponte. See Decker, 165 F. App'x at 954 n. 3 ("Under 28 U.S.C. § 1406(a), a district court, upon a motion or sua sponte, may transfer a case to a court of proper jurisdiction when such a transfer is in the interest of justice."); Lozinski v. Black Bear Lodge, LLC, No. CV167963KMJBC, 2017 WL 1380416, at *4 (D.N.J. Apr. 10, 2017) (noting that transfer pursuant to 28 U.S.C. § 1631 may be raised sua sponte).
Although not entirely clear from the allegations in the complaint, Ms. Miller's affidavit indicates that Mohler sent correspondence to Golden 1 regarding his dispute on or around July 31, 2017. (Doc. 12-2, at 3). Thereafter, Golden 1 allegedly conducted an evaluation of Mohler's credit history in response to the challenge being lodged. (Doc. 12-2, at 3). As such, Mohler's claims under the FCRA appear to stem from Golden 1's investigation of his dispute beginning in 2017.
For the aforementioned reasons, the Court respectfully recommends that Golden 1's motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) (Doc. 12) be GRANTED IN PART. Specifically, the Court recommends that the claims against Golden 1 be DISMISSED WITHOUT PREJUDICE to Mohler raising them in another forum. Accordingly, the Court further recommends that, insofar as Golden 1 seeks dismissal of the entire complaint with prejudice (Doc. 12, at 2), the motion to dismiss be DENIED IN PART.
The Court makes no express finding as to whether such a forum indeed exists, or what it may be. --------
D. LEAVE TO AMEND
The Third Circuit has instructed that district courts generally must permit a curative amendment if a complaint filed pro se is vulnerable to dismissal for failure to state a claim, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). However, the Third Circuit has also acknowledged that a district court has "substantial leeway in deciding whether to grant leave Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000). Here, the Court finds that permitting Mohler leave to file an amended complaint to reassert his claims against Golden 1 would be futile, as it is evident that this Court lacks personal jurisdiction over this defendant. Accordingly, it is respectfully recommended that leave to amend the complaint be DENIED. III. RECOMMENDATION
Based on the foregoing, it is respectfully recommended that:
1. Defendant Golden 1's motion to dismiss (Doc. 12) be GRANTED IN PART and DENIED IN PART;Dated: December 17, 2018
2. All claims against Defendant Golden 1 (Doc. 1) be DISMISSED WITHOUT PREJUDICE for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2);
3. Leave to amend the complaint be DENIED;
4. The Clerk of Court be directed to TERMINATE Defendant Golden 1 from the caption of this action; and
5. The matter be remanded to the undersigned for further proceedings.
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated December 17, 2018. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter desc28 U.S.C. § 636(b)(1)(B)(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.Dated: December 17, 2018
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge