Opinion
Case No. 05 CV 1391 JM (NLS).
March 7, 2006
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Background
Plaintiff has filed a lawsuit against Commercial Services Group, Inc. ("CSG"), Parball Corporation (d/b/a Bally's/Paris Las Vegas Hotel), and Daniel Mingo, alleging violations of the Fair Debt Collection Practices Act ( 15 U.S.C. § 1692 et seq.) and the Rosenthal Fair Debt Collection Practices Act (Cal. Civ. Code § 1788 et seq.). Plaintiff alleges that CSG treated her in an abusive manner while attempting to collect a debt Plaintiff incurred while staying at Bally's Las Vegas Hotel. Defendant Parball Corporation is moving to dismiss the case for lack of personal jurisdiction or, in the alternative, to transfer the case to the District of Nevada.
On November 22, 2005, this court ordered Parball Corporation substituted as the real party-in-interest for Defendant Bally's/Paris Las Vegas.
Personal Jurisdiction
A federal district court determines whether it has personal jurisdiction over a defendant by first looking to the long arm statute of the state in which the district court sits. See Aanestad v. Beech Aircraft Corp., 521 F.2d 1298, 1300 (9th Cir. 1974). California allows a state court to exercise jurisdiction "on any basis not inconsistent with the Constitution of [California] or of the United States." Cal. Code Civ. Proc. § 410.10 (West 2005).
A State court's assertion of personal jurisdiction over a nonresident defendant who has not been served with process within the state comports with the requirements of the due process clause of the federal Constitution if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate `traditional notions of fair play and substantial justice.Vons Companies, Inc. v. Seabest Foods, Inc., 14 Cal.4th 434, 444-45 (1996). A court may exercise either general or specific personal jurisdiction over a defendant. General jurisdiction is established by "substantial . . . continuous and systematic" contacts with the forum. See Perkins v. Benguet Mining Co., 342 U.S. 437, 445-46 (1952). A defendant may be subject to specific jurisdiction if it has purposefully availed itself of the forum state and the controversy is related to or arises out of those contacts. See Burger King v. Rudzewicz, 471 U.S. 462, 472-73 (1985). A court, however, may only exercise specific jurisdiction over a defendant if doing so would comport with notions of fair play and substantial justice. Id. at 477.
A. General Jurisdiction
Plaintiff has failed to demonstrate that Defendant is subject to the general jurisdiction of this court. See Vons Companies, Inc., 14 Cal.4th at 449 (allocating the burden of proof that jurisdiction exists to the plaintiff); see also Amba Mktg. Sys. v. Jobar Int'l Inc., 551 F.2d 784, 787 (9th Cir. 1977) (stating that a plaintiff cannot rest only on the allegations in the complaint as a basis for the exercise of personal jurisdiction). Plaintiff alleges in her Verified Complaint that Defendant "do[es] business" in California, but has failed to submit declarations or affidavits in support of this contention. Plaintiff only speculates that Defendant advertises in California. Because Plaintiff has not brought forward any evidence to show that Defendant has systematic and continuous contact with California, the court cannot exercise general jurisdiction over Defendant.
B. Specific Jurisdiction
Defendant argues that all contact with California was initiated by Plaintiff or by the third party collection agency, CSG. Defendant argues that it hired CSG to collect a debt incurred in Nevada and it so happened that Plaintiff lived in California. Plaintiff counters that Defendant hired CSG as its agent to collect a debt that it knew was owed by an individual in California. Plaintiff maintains that there is an agency relationship between Defendant and CSG and that the acts of CSG can be imputed to Defendant.
1. Defendant's contacts with California
Defendant allegedly hired a collection agency in Kentucky, responded to emails and phone calls from CSG and from Plaintiff, and initiated phone calls with CSG (in Kentucky) at Plaintiff's request. None of these contacts amount to Defendant directing its conduct toward California in order to derive some benefit or to seek some protection. The only direct contacts between Plaintiff and Defendant are Plaintiff's telephone calls to Defendant to complain about the alleged harassment from CSG. These calls from Plaintiff in California to Defendant in Nevada are not contacts that can subject Defendant to personal jurisdiction in California. Whether personal jurisdiction exists depends on the actions of the defendant and not on where the plaintiff chooses to live. See Davis v. American Family Mutual Insurance Company, 861 F.2d 1159, 1162 (9th Cir. 1988); Hunt v. Erie Ins. Group, 728 F.2d 1244, 1248 (9th Cir. 1984). The phone calls between Defendant and Plaintiff have nothing to do with whether Defendant has purposefully availed itself of the benefits and protections of California. See Hunt, 728 F.2d at 1248.
2. Agency
Plaintiff maintains that Defendant is subject to personal jurisdiction under the theory of agency. Essentially, Plaintiff's contention is that because Defendant hired CSG and communicated information to CSG regarding the status of payment on the debt, Defendant and CSG have an agency relationship. Plaintiff argues that Defendant had "apparent authority" over CSG because CSG was acting on Defendant's behalf. Defendant responds that it never had the right to exert control over CSG and, therefore, the definitive feature of an agency relationship is lacking.
"For purposes of personal jurisdiction, the actions of an agent are attributable to the principal." Sher v. Johnson, 911 F.2d 1357 (9th Cir. 1990). A creditor and a debt collector may stand in a principal-agent relationship if the creditor exerts some control over the actions of the debt collector. See Newman v. CheckRite California, Inc., 912 F. Supp. 1354, 1370 (E.D. Cal. 1995) ("Under general rules of agency, one who contracts to act on behalf of another and is subject to the other's control, may be both an agent and an independent contractor."); Colo. Capital v. Owens, 227 F.R.D. 181, 188 (E.D.N.Y. 2005).
The Verified Complaint does not specifically allege that Defendant and CSG have an agency relationship. The Verified Complaint alleges that Defendant hired CSG and later responded to an email from CSG regarding whether Plaintiff had paid the debt. V. Compl. ¶¶ 24, 41. Plaintiff also maintains, using dubious logic, that because Defendant "commented on not knowing how to deal with people like [Plaintiff]," Defendant and CSG were coordinating their efforts. V. Compl. ¶ 42. The Verified Complaint contains allegations, however, the belie Plaintiff's assertion that Defendant controlled the actions of CSG. Plaintiff alleges that she informed Defendant that she was being harassed and abused by CSG. V. Compl. ¶¶ 57-58. The harassment continued, though, even after Defendant allegedly said that it would take care of the situation. V. Compl. ¶¶ 59, 67, 71. This suggests that Defendant did not control CSG. The Verified Complaint only establishes that Defendant hired CSG and passed along pertinent information regarding the status of the debt. Plaintiff has not presented any evidence that Defendant had the right to control CSG, or that there was any coordination between the two. Nor has Plaintiff supported its argument that apparent authority existed with evidence that Defendant manifested to Plaintiff that CSG was its agent. See Newman v. CheckRite California, Inc., 912 F.Supp. 1354, 1371 (N.D.Cal. 2000). There is nothing from which the court can conclude that CSG was anything more than an independent contractor.
In the absence of proof that Defendant purposefully availed itself of the benefits or protections of California, or that an agency relationship existed between Defendant and CSG, the court will not exercise specific jurisdiction over Defendant.
Conclusion
The court hereby GRANTS Defendant's motion to dismiss for lack of personal jurisdiction.
IT IS SO ORDERED.