Butler v. Goldsmith & Hull, APC et al

Filing 12

ORDER denying 8 Motion to Dismiss For Improper Venue. For the reasons stated herein, the Court denies Defendants' motion to dismiss for improper venue. Signed by Judge Marilyn L. Huff on 8/11/2010. (leh)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 ROBERT A. BUTLER, vs. Plaintiff, CASE NO. 10-CV-1144-H (NLS) ORDER DENYING MOTION TO DISMISS FOR IMPROPER VENUE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

GOLDSMITH & HULL, APC; HARVEST CREDIT MANAGEMENT VII, LLC, Defendants.

On May 27, 2010, Plaintiff Robert A. Butler ("Plaintiff") filed a complaint against

18 Defendants Goldsmith & Hull, APC, and Harvest Credit Management VII, LLC 19 ("Defendants") alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 20 U.S.C. § 1692 et seq., and the California Rosenthal Fair Debt Collection Practices Act 21 ("Rosenthal Act"), Civil Code §§ 1788-1788.33. (Doc. No. 1.) On July 12, 2010, Defendants 22 filed a motion to dismiss for improper venue pursuant to Federal Rule of Civil Procedure 23 12(b)(3). (Doc. No. 8.) On July 29, 2010, Plaintiff filed a First Amended Complaint. (Doc. 24 No. 9.) On July 30, 2010, Plaintiff filed an opposition to Defendants' motion to dismiss. 25 (Doc. No. 11.) Defendants did not file a reply in support of their motion to dismiss. The Court 26 determines this matter is appropriate for resolution without oral argument and submits the 27 motion on the parties' papers pursuant to Local Rule 7.1(d)(1). For the reasons stated below, 28 the Court DENIES Defendants' motion to dismiss.
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DISCUSSION Venue in federal question cases is governed by 28 U.S.C. § 1391(b). Section 1391(b)

3 states that venue is proper: (1) in a district where any defendant resides if all defendants reside 4 in the same state; (2) a district where a "substantial part of the events or omissions" on which 5 the claim is based occurred; or (3) if there is no district where the action may otherwise be 6 brought, the district "in which any defendant may be found." Id. 7 Plaintiff's complaint states that "[v]enue is proper in this District in that the acts and

8 transactions occurred here, Plaintiff resides here, and Defendants transact business here." 9 (Doc. No. 1. at 2.) Defendants argue that venue in the Southern District of California is 10 improper because the only relation to the Southern District of California is that Plaintiff 11 happens to live in that district. (Doc. No. 8-1 at 5.) Plaintiff argues that venue in the Southern 12 District of California is proper because Defendants directed an offending letter to Plaintiff's 13 home in this district. (Doc. No. 11 at 5.) 14 In a similar challenge to venue in a case claiming improper debt collection, the Second

15 Circuit held that receipt of a collection notice is a substantial part of the events giving rise to 16 a claim under the FDCPA. See Bates v. C & S Adjusters, Inc., 980 F.2d 865, 868 (2nd 17 Cir.1992). The Court agrees that venue is proper in the Southern District of California. 18 To the extent that Defendants argue that the Court lacks personal jurisdiction over 19 Defendants, the Court denies Defendants' motion to dismiss on that basis.1 Plaintiff claims 20 that Defendants obtained a judgment against Plaintiff in San Diego Superior Court entitling 21 Defendants to interest on a debt owed to Harvest Credit Management. (Doc. No. 11 at 4; Doc. 22 No. 11-1 at 2.) Further, Plaintiff's lawsuit arises from a letter regarding this judgment that 23 Defendants sent to Plaintiff's home in San Diego. (Id.) Defendants present no contradictory 24 facts and do not argue that this Court's exercise of personal jurisdiction is unreasonable. The 25 Court concludes that Defendants purposely availed themselves of this forum and that the 26 Defendants mention lack of personal jurisdiction in their notice of motion. (Doc. No. 8 at 2.) However, Defendants do not argue lack of personal jurisdiction anywhere in the 28 memorandum of points and authorities in support of their motion. (Doc. No. 8-1.) 27
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1 exercise of personal jurisdiction is proper. See Pebble Beach Co. v. Caddy, 453 F.3d 1151, 2 1154-1155 (9th Cir. 2006); Ochoa v. J.B. Martin & Sons Frams, Inc., 287 F.3d 1182, 1188-89 3 (9th Cir. 2002). 4 5 6 venue. 7 IT IS SO ORDERED. CONCLUSION For the reasons above, the Court DENIES Defendants' motion to dismiss for improper

8 DATED: August 11, 2010 9 10 11 COPIES TO: 12 All parties of record 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-310cv1144

________________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT