Meredith v. Unifund CCR Partners et al

Filing 24

MEMORANDUM OPINION AND ORDER, denying 9 MOTION to Dismiss Or In The Alternative, Motion for Change of Venue filed by Sandra Simpson, Zarzaur & Schwartz, P.C. Signed by Hon. Chief Judge Mark E. Fuller on 10/29/08. (Attachments: # 1 appeals checklist)(vma, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION

C H A R L E S MEREDITH, JR., P l a i n t if f , v. UNIFUND CCR PARTNERS, et al., D e f e n d a n ts .

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C A S E NO. 2:08-cv-375-MEF ( W O - Do not publish)

MEMORANDUM OPINION AND ORDER T h is cause is before the Court on Defendant's Motion to Dismiss or in the Alternative, M o tio n for Change of Venue (Doc. # 9), which Plaintiff has opposed. Alleging violations o f the Fair Debt Collection Practices Act (FDCPA), Plaintiff filed his lawsuit in the United S tate s District Court for the Middle District of Alabama. Plaintiff's complaint specifically a lle g e s that venue is appropriate in this Court pursuant to 28 U.S.C. § 1391(b)(2). See C o m p l. at ¶ 3. Two of the Defendants have claimed that venue is improper in this district a n d urged the Court to either dismiss the case or to transfer it to the United States District C o u rt for the Northern District of Alabama, a district where they contend venue is a p p ro p ria te. Because the Court finds that venue is appropriate in this district, the motion is d u e to be DENIED. BACKGROUND A c c o rd in g 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 re sid e s in Montgomery, Alabama, a city within the Middle District of Alabama. Two of the D e f en d a n ts are foreign corporations engaged in the business of buying, selling, and c o l le c tin g unpaid debts: Centurion Capital Corporation ("Centurion") and Unifund CCR P a rtn e rs ("Unifund"). The remaining two Defendants are a lawyer, Sandra Simpson

("S im p so n " ), and her employer, the law firm, Zarzaur & Schwartz, P.C. ("the Z&S firm"), lo c a te d in Birmingham, Alabama.1 P la in tif f alleges that he received letters from Centurion and the Z&S firm, in 2007, s e e k in g to collect a debt which he was alleged to owe. Plaintiff also claims he received a te le p h o n e call regarding this alleged debt from either Centurion or the Z&S firm. Plaintiff c o n te n d s that he disputed the debt. On May 21, 2007, Simpson filed a lawsuit against P lain tiff on behalf of Centurion. This lawsuit was filed in the Montgomery County Small C la im s Court, and it sought to collect the debt which Plaintiff was alleged to owe. Along w ith the Complaint, Simpson filed an affidavit in which she held herself out as a re p re se n ta tiv e of Centurion and represented that Plaintiff was responsible for the debt they w e re attempting to collect. Plaintiff alleges that the affidavit contained inaccurate and m is le a d in g information about him. Plaintiff denied liability and sought discovery. On A u g u st 20, 2007, Simpson, acting on behalf of Centurion, moved to dismiss the lawsuit a g a in s t Plaintiff in the Montgomery County Small Claims Court without prejudice. Plaintiff a g re e d to the dismissal of the action, but only if it would be with prejudice. The case was

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Birmingham, Alabama is a city within the Northern District of Alabama. 2

c a lled for trial.

Plaintiff and Simpson were present in the Small Claims Court in

M o n tg o m e ry County. The judge asked what evidence existed proving that Plaintiff owed the d e b t, and Simpson did not offer any. The judge dismissed the suit with prejudice on S e p te m b e r 18, 2007. On August 30, 2007, Unifund sent Plaintiff a dunning letter advising him that Unifund in te n d e d to collect the same debt that Centurion had been pursuing. On October 31, 2007, th e Z&S firm sent Plaintiff a letter advising him that it was now attempting to collect this d e b t on behalf of Unifund. No individual signed this letter. On December 3, 2007, Simpson, th is time acting on behalf of Unifund, filed a second lawsuit against Plaintiff in the M o n tg o m e ry County Small Claims Court, for the purpose of collecting the same debt which h ad been the subject of the prior action by Simpson on behalf of Centurion. The Z&S firm th e n sent a letter to Plaintiff threatening to file the lawsuit which had already been filed in M o n tg o m e ry. Against Plaintiff denied liability and asserted various defenses including res ju d ica ta . 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 g o in g to court. In this letter, Simpson indicated she was acting on behalf of Unifund. P la i n t i f f alleges that this letter contained materially false statements concerning the debt a lle g e d ly owed. Plaintiff retained a lawyer who confronted Simpson regarding the res ju d ic a ta bar to the collection action. Thereafter, Simpson filed a motion asking the Small C la im s Court of Montgomery County to dismiss the lawsuit with prejudice, which motion w a s granted. Plaintiff alleges harm arising out of these actions by the Defendants. 3

D IS C U S S IO N U n d e r 28 U.S.C. § 1406(a), "[t]he district court of a district in which is filed a case la yin g venue in the wrong division or district shall dismiss, or if it be in the interest of justice, tra n sf e r such case to any district or division in which it could have been brought." Where, a s here, a civil action wherein subject matter jurisdiction is not founded on diversity of c i t iz e n s h i p , venue is proper in: a judicial district where any defendant resides if all d e f en d a n ts reside in the same state; a judicial district "in which a substantial part of the e v e n ts or omissions giving rise to the claim occurred" or a substantial part of the property s u b je c t 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 o c c u r re d in the Northern District of Alabama because they mailed debt demand letters, in itia te d telephone calls, and drafted and mailed the lawsuit from its offices in Birmingham, w h i c h is in the Northern District. Defendant cites Jenkins Brick Co. v. Bremer, which in v o l v e d a suit by an employer against a former employee for breach of a noncompete clause o f an employment contract. 321 F.3d 1366 (11th Cir. 2003). In Bremer, the plaintiff p re se n te d the employment contract to the defendant in Georgia, the defendant signed the c o n tra c t in Georgia, the defendant's worked in Georgia, and defendant's work for the c o m p e tito r that gave rise to the lawsuit occurred in Georgia. The Court concluded that the d e f en d a n t'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 4

in the Middle District. The Defendants twice sued the Plaintiff in Montgomery County and p a rtic ip a te d in court hearings there. Defendants cite no federal case to support their position t h a t venue is proper in the Northern District because the mail that gave rise to the M o n tgo m ery County lawsuits originated from the Z&S firm's offices in the Northern D is tric t. More persuasive than Defendants' arguments are those made by Plaintiff and the c a se s 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 re s id e s because the injury did not occur until the mail was received. See, e.g., Bates v. C&S A d ju s te rs , Inc., 980 F.2d 865, 868 (2d Cir. 1992); Bailey v. Clegg, Brush & Assocs., Inc., No. 1 :90 -cv -27 0 2 -C A M , 1991 WL 143461 at *2 (N.D. Ga. June 14, 1991); Murphy v. Allen C o u n ty Claims & Adjustments, 550 F. Supp. 128, 130-31 (S.D. Ohio 1982); Gachette v. T r i-C ity Adjustment Bureau, 519 F. Supp. 311, 313-14 (N.D. Ga. 1981). The rationale b e h in d 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 o f the events" that gave rise to Plaintiff's claims occurred in the Middle District, and thus v e n u e is proper here. Accordingly, it is hereby ORDERED that Motion to Dismiss or in the Alternative, M o tio n for Change of Venue (Doc. # 9) is DENIED. D o n e this the 29 th day of October, 2008.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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