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Cutcher v. Midland Funding, LLC

United States District Court, D. Maryland

May 19, 2014

DOUG CUTCHER, Plaintiff,
v.
MIDLAND FUNDING, LLC, et al., Defendants.

MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

Doug Cutcher, plaintiff, filed suit on December 11, 2013, raising two claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (the "FDCPA"), against three defendants: Midland Funding, LLC ("Midland Funding"); Midland Credit Management, Inc. ("Midland Credit"); and Encore Capital Group, Inc. ("Encore"). See Complaint (ECF 1, "Compl."). Defendants have filed a Motion to Dismiss Plaintiff's Complaint for Lack of Jurisdiction (ECF 6) and a supporting memorandum (ECF 6-1, "Mem.") (collectively, the "Motion"). In the Motion, defendants aver that they are incorporated and maintain their principal places of business in California, and seek dismissal, pursuant to Fed.R.Civ.P. 12(b)(2), based on a lack of personal jurisdiction. See ECF 6; Mem. at 1-2. Plaintiff opposes the Motion (ECF 7) and requests, as an alternative to dismissal, that the case be transferred to the United States District Court for the Southern District of California. ECF 7-1 ("Opposition" or "Opp.") at 6-7; accord ECF 7 at 1. Defendants have replied (ECF 8, "Reply").

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I will transfer the case to the United States District Court for the Southern District of California.

I. Factual Background[1]

Cutcher is a resident of Milton, Florida, and is a "consumer" as defined under the FDCPA, 15 U.S.C. § 1692a(3). Compl. ¶ 5. Defendants are entities "specializing in debt collection" and are "debt collector(s)" as defined under the FDCPA, 15 U.S.C. § 1692a(6). Id. ¶¶ 6-9. Each defendant maintains "a business address of 400 E. Pratt St., 8th Fl., Baltimore, MD 21203." Id. ¶¶ 7-9. The Complaint does not identify the place of incorporation or the principal place of business of any of the three defendants.

According to plaintiff, the three defendants, "acting in concert, " had "repeatedly contacted [him] in an attempt to collect" a consumer debt, which "related to a HSBC credit card." Id. ¶¶ 10, 12. In particular, defendants' "collectors placed repeated harassing telephone calls to Plaintiff's home telephone" during December 2012 and January 2013, allegedly calling plaintiff "at least two (2) times per day, more than ten (10) times per week, and on weekends with an intent to harass Plaintiff." Id. ¶¶ 15, 17. The "calls originated from numbers, including but not limited to, (800) 265-8825, " which belongs to Midland Credit, as well as "from restricted and private numbers." Id. ¶ 16. Despite plaintiff's requests that defendants stop calling him, defendants continued "to harass, abuse and coerce Plaintiff into paying an alleged debt." Id. ¶¶ 18-19.

II. Fed.R.Civ.P. 12(b)(2) Standard

A motion to dismiss for lack of personal jurisdiction arises under Fed.R.Civ.P. 12(b)(2). "When a court's personal jurisdiction is properly challenged by a Rule 12(b)(2) motion, the jurisdictional question thus raised is one for the judge, with the burden on the plaintiff ultimately to prove the existence of a ground for jurisdiction by a preponderance of the evidence." Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). Discovery and an evidentiary hearing are not required to resolve a motion under Rule 12(b)(2). See generally 5B Wright & Miller, Federal Practice & Procedure § 1351, at 274-313 (3d ed. 2004, 2012 Supp.). Rather, a district court may address the question of personal jurisdiction as a preliminary matter, ruling solely on the basis of motion papers, supporting legal memoranda, affidavits, and the allegations in the complaint. Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir. 2009).[2] In that circumstance, the plaintiff need only make "a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge." Id.

"In deciding whether the plaintiff has made the requisite showing, the court must take all disputed facts and reasonable inferences in favor of the plaintiff." Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 396 (4th Cir. 2003). Notably, however, "district courts are not required to look solely to the plaintiff's proof in drawing those inferences." Mylan Laboratories, Inc. v. Akzo, N.V., 2 F.3d 56, 62 (4th Cir. 1993). In any event, "[a] threshold prima facie finding that personal jurisdiction is proper does not finally settle the issue; plaintiff must eventually prove the existence of personal jurisdiction by a preponderance of the evidence, either at trial or at a pretrial evidentiary hearing.'" New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 n.5 (4th Cir. 2005) (citation omitted).

Alternatively, the court may, in its discretion, permit limited discovery as to the jurisdictional issue. See Mylan Laboratories, 2 F.3d at 64. Then, "the court may resolve the [jurisdictional] challenge on the basis of a separate evidentiary hearing, or may defer ruling pending receipt at trial of evidence relevant to the jurisdictional question." Combs, 886 F.2d at 676. Plaintiff has not requested jurisdictional discovery, however.

III. Discussion

Fed. R. Civ. P. 4(k)(1)(A) authorizes a federal district court to exercise personal jurisdiction over a defendant in accordance with the law of the state where the district court is located. Carefirst of Maryland, 334 F.3d at 396. Therefore, "to assert personal jurisdiction over a nonresident defendant, two conditions must be satisfied: (1) the exercise of jurisdiction must be authorized under the state's long-arm statute; and (2) the exercise of jurisdiction must comport with the due process requirements of the Fourteenth Amendment." Id.

Maryland's long-arm statute is codified at Md. Code (2013 Repl. Vol.), § 6-103(b) of the Courts & Judicial Proceedings Article. It authorizes "personal jurisdiction ...


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