Ullom v. Doctors Collection Service, Inc.
Filing
26
ORDER GRANTING MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION. ORDERED: 1. Defendant's Motion to Dismiss Pursuant to Fed.R.Civ.P 12(b)(2) 8 is GRANTED IN PART and DENIED IN LIMITED PART; 2. Defendant's Motion is GRANTED to the extent that it requests a dismissal of Plaintiff's claims; 3. The Court exercises its discretion to DENY that portion of Defendant's Motion which seeks an award of costs and/or attorney's fees; 4. Plaintiff's claims are DISMISSED WITHOUT PREJUDICE FOR LACK OF PERSONAL JURISDICTION; and, 5. The Clerk of Court is DIRECTED to TERMINATE this action, by Judge William J. Martinez on 1/30/2018. (dhans, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-0740-WJM-STV
BENJAMIN ULLOM,
Plaintiff,
v.
DOCTORS COLLECTION SERVICE, INC.,
Defendant.
ORDER GRANTING MOTION TO DISMISS
FOR LACK OF PERSONAL JURISDICTION
Plaintiff Benjamin Ullom (“Plaintiff”) brings claims against Defendant Doctors
Collection Services (“Defendant”) arising under the Fair Debt Collections Practices Act,
15 U.S.C. § 1692 et seq (“FDCPA”). Now before the Court is Defendant’s Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b)(2). (ECF No. 8 (the “Motion”).) Plaintiff
timely filed a Memorandum of Law in Opposition to Defendant’s 12(b)(2) Motion to
Dismiss (ECF No. 20 (“Response”)), which was followed by Defendant’s Memorandum
of law in Reply to Defendant’s Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2)
(ECF No. 22 (“Reply”)). For the reasons explained below, Defendant’s Motion is
granted and the action is dismissed for lack of personal jurisdiction.
I. LEGAL STANDARD
The purpose of a motion to dismiss pursuant to Rule 12(b)(2) is to test whether
the Court has personal jurisdiction over the named parties. The plaintiff bears the
burden of establishing personal jurisdiction over a defendant. Behagen v. Amateur
Basketball Ass’n, 744 F.2d 731, 733 (10th Cir. 1984). As is true here, when the court
does not hold an evidentiary hearing before ruling on jurisdiction, “the plaintiff need only
make a prima facie showing” of personal jurisdiction to defeat a motion to dismiss. Id.
(citing Am. Land Program, Inc. v. Bonaventura Uitgevers Maatschappij, N.V., 710 F.2d
1449, 1454 n.2 (10th Cir. 1983)). A plaintif f “may make this prima facie showing by
demonstrating, via affidavit or other written materials, facts that if true would support
jurisdiction over the defendant.” OMI Holdings, Inc. v. Royal Ins. Co. of Can., 149 F.3d
1086, 1091 (10th Cir. 1998). To defeat the plaintiff’s prima facie case, a defendant
“must present a compelling case demonstrating ‘that the presence of some other
considerations would render jurisdiction unreasonable.’” Id. (quoting Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 477 (1985)).
To obtain personal jurisdiction over a nonresident defendant, the plaintiff “must
show that jurisdiction is legitimate under the laws of the forum state and that the
exercise of jurisdiction does not offend the due process clause of the Fourteenth
Amendment.” Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th Cir. 2004) (quoting
Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th Cir. 1999)). In
Colorado, the state’s long arm statute “confers the maximum jurisdiction permissible
consistent with the Due Process Clause.” Archangel Diamond Corp. v. Lukoil, 123 P.3d
1187, 1193 (Colo. 2005) (referring to Colo. Rev. Stat. § 13-1-124). Thus, the Court
need only address the constitutional question of whether the exercise of personal
jurisdiction over the defendants comports with due process. Dudnikov v. Chalk &
Vermillion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (the state jurisdictional
2
analysis in Colorado “effectively collapses into the second, constitutional, analysis”).
The Court will accept the well-pled factual allegations of the complaint as true to
determine whether Plaintiffs have made a prima facie showing that personal jurisdiction
exists. Id. Any factual conflicts arising from affidavits or other submitted materials are
resolved in the plaintiff’s favor. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.
1995).
II. FACTUAL BACKGROUND1
Plaintiff, a Colorado resident who previously resided in Alaska, alleges that
Defendant, a debt collector with its principal place of business in Alaska, reported a
debt allegedly unpaid by him to a credit reporting agency, in violation of the FDCPA.
(ECF No. 1 at 3, ¶ 18.) According to Plaintiff’s Complaint, Defendant reported the
alleged debt on plaintiff’s credit report, Plaintiff disputed the alleged debt in a dispute
letter sent to Defendant via facsimile on July 25, 2016. (Id. at 3, ¶¶ 12–13; ECF No. 8
at 8.) On November 4, 2016, Plaintiff found that “Defendant had re-reported the credit
account to the bureau(s) in September 2016" and “Defendant failed to list the account
as ‘disputed by consumer’ despite being required to do so by the FDCPA.” (ECF No. 1
at 3, ¶¶ 14–15.) Plaintiff claims that “[a]s a result of Defendant’s deceptive, misleading
and unfair debt collection practices, Plaintiff has been damaged.” (Id. at 3, ¶ 16.)
III. ANALYSIS
Plaintiff does not argue that Defendant is subject to this Court’s general
1
Consistent with the standard outlined in Part II, these facts are drawn from the wellpled facts of Plaintiff’s Complaint (ECF No. 1), and from the various documents filed by the
parties, as cited.
3
jurisdiction, only that the Court has specific jurisdiction over the claims in this action.
(See ECF No. 20 at 9.) “A specific jurisdiction analysis involves a two-step inquiry.”
First the Court “must consider whether the defendant’s conduct and connection with the
forum State are such that he should reasonably anticipate being haled into court here.”
Benton, 375 F.3d at 1075 (internal quotation marks omitted). “Second if the
defendant’s actions create sufficient minimum contacts, [the court] must then consider
whether the exercise of personal jurisdiction over the defendant offends ‘traditional
notions of fair play and substantial justice.’” OMI, 149 F.3d at 1091 (quoting Asahi Metal
Indus. Co.v. Superior Court of California, Solano Cty., 480 U.S. 102, 113 (1987)).
The “‘minimum contacts’ standard requires, first, that the out-of-state defendant
must have ‘purposefully directed’ its activities at residents of the forum state, and
second, that the plaintiff’s injuries must ‘arise out of’ defendant’s forum-related
activities.” Dudnikov, 514 F.3d at 1071. The Court addresses each inquiry in turn.
The first step of the Court’s analysis may be phrased either as whether the
defendant “‘purposefully directed’ its activities at the forum state” or “‘purposefully
availed’ itself of the privilege of conducting activities or consummating a transaction in
the forum state,” depending on the factual context and the nature of the claims.
Dudnikov, 514 F.3d at 1071. The Supreme Court has made clear that the aim of this
inquiry is, in any event, “to ensure that an out-of-state defendant is not bound to appear
to account for merely ‘random, fortuitous, or attenuated contacts’ with the forum state.”
Id. (quoting Burger King, 471 U.S. at 475.)
Three additional principles further inform the Court’s analysis here. First, case
4
law makes clear that the requisite “minimum contacts” “must arise out of contacts that
the ‘defendant himself’ creates with the forum States.” Walden v. Fiore, 134 S.Ct.
1115, 1122 (2014) (emphasis in original). Thus, “the unilateral activity of another party
is not an appropriate consideration when determining whether a defendant has
sufficient contacts with a forum State.” Dudnikov, 514 F.3d at 1073 (internal quotation
marks omitted); accord OMI, 149 F.3d at 1092.
Second, the Court’s “‘minimum contacts’ analysis looks to the defendant’s
contacts with the forum State itself, not the defendant’s contacts with persons who
reside there.” Walden, 134 S. Ct. at 1122. “To be sure, a defendant’s contacts with the
forum State may be intertwined with his transactions or interactions with the plaintiff or
other parties. But a defendant’s relationship with a plaintiff or third party, standing
alone, is an insufficient basis for jurisdiction.” Id. at 1123. Rather, “it is the defendant’s
conduct that must form the necessary connection with the forum State that is the basis
for its jurisdiction over him.” Id. at 1122.
Third, the “mere foreseeability of causing an injury in the forum state is, standing
alone, insufficient.” Dudnikov, 514 F.3d at 1077. A plaintiff must establish “not only
that defendants foresaw (or knew) that the effects of their conduct would be felt in the
forum state, but also that defendants undertook intentional actions that were expressly
aimed at that forum state.” Id. (emphasis in original).
Applying the foregoing principals, the Court finds that Plaintiff has failed to make
a sufficient prima facie showing of minimum contacts. Defendant did not affirmatively
direct communications to Plaintiff in Colorado. (ECF No. 8 at 7.) Defendant sent an
5
initial collection demand letter to Plaintiff at Plaintiff’s Alaska address—the address
provided by the original creditor. (Id. at 2.) Defendant mailed a second letter to Plaintiff
in response to his dispute letter, also to his Alaska address. ( Id.) Neither letter was
returned as undeliverable. (Id.) Additionally, “Defendant did not place any calls to
Colorado and did not receive any calls from Colorado in its efforts to collect from
Plaintiff.” (Id. at 11.) While Plaintiff claims that Defendant knew Plaintiff was a resident
of Colorado when it reported his debt to the credit agencies (ECF No. 20 at 2), Plaintiff
does not provide any factual basis for this claim, and Defendant maintains that it “never
received a telephone call from Plaintiff informing Defendant of his new address” (ECF
No. 8 at 2).
Defendant claims it did not purposefully direct any collection activities into the
state of Colorado. (Id. at 8.) Defendant is not licensed as a Collection Agency in
Colorado and “does not collect accounts with Colorado addresses.” (Id. at 2, 8.)
Indeed, “[i]n the event a creditor sends Defendant an account that is associated with a
consumer who resides in a state like Colorado wherein Defendant does not collect, the
account is automatically blocked such that no collection activity will occur on the
account.” (Id. at 8.)
Plaintiff contends that “[i]f a debt collector is reporting to national credit agencies
who operate throughout the United States, that collector must anticipate that it is
availing itself of the laws of those fifty states where it is reporting.” (ECF No. 20 at 6.)
However, Plaintiff cites no case law or other authority to support this broad and
conclusory contention, which, as a practical matter would appear to make all debt
6
collectors subject to suit in all states all the time. There is simply nothing in the statute
or applicable case law to support such a sweeping proposition.
Given that in attempting to collect from Plaintiff, Defendant did not purposefully
direct any of its collection activities to Colorado, did not contact Plaintiff in Colorado, did
not place any calls to Colorado, and did not even receive any calls from Colorado, the
Court concludes that Plaintiff has not demonstrated that Defendant’s actions create
sufficient minimum contacts with this State. Because Plaintiff has failed to make a
prima facie showing of minimum contacts to defeat a motion to dismiss, the Court does
not need to consider whether Plaintiff’s injuries arise out of Defendant’s forum-related
activities. Nor does it need to consider whether the exercise of personal jurisdiction
over the Defendant would offend traditional notions of fair play and substantial justice.
IV. CONCLUSION
For the reasons set forth below, the Court ORDERS as follows:
1.
Defendant’s Motion to Dismiss Pursuant to Fed.R.Civ.P 12(b)(2) (ECF No. 8) is
GRANTED IN PART and DENIED IN LIMITED PART;
2.
Defendant’s Motion is GRANTED to the extent that it requests a dismissal of
Plaintiff’s claims;
3.
The Court exercises its discretion to DENY that portion of Defendant’s Motion
which seeks an award of costs and/or attorney’s fees;
4.
Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE FOR LACK OF
PERSONAL JURISDICTION; and,
5.
The Clerk of Court is DIRECTED to TERMINATE this action.
7
Dated this 30th day of January, 2018
BY THE COURT:
_______________________
William J. Martínez
United States District Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?