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, )

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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 . ) ) ) ) ) ) ) ) ) C A S E NO. 2:08-cv-375-MEF ( W O - Do not publish) MEMORANDUM OPINION AND ORDER T h is cause is before the Court on Defendant's Motion to Dismiss or in the Alternative, M o tio n for Change of Venue (Doc.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 1 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 5

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