Barger v. Midland Funding, LLC et al

Filing 11

MEMORANDUM AND ORDER granting 6 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Marvin J. Garbis on 6/19/14. (apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DONALD BARGER

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Plaintiff
vs.

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MIDLAND FUNDING, LLC, MIDLAND
CREDIT MANAGEMENT, INC., and
ENCORE CAPITAL GROUP, INC.
Defendants
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CIVIL ACTION NO. MJG-13-3909

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MEMORANDUM AND ORDER
The Court has before it Defendants' Motion to Dismiss
Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12(b)(2)
[Document 6] and the materials submitted relating thereto.

The

Court finds that a hearing is unnecessary.
Plaintiff, an individual residing in Ohio, sues Defendants,
California corporations based in California, for violations of
the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.
("FDCPA").
By the instant motion, Defendants seek dismissal for lack
of personal jurisdiction.

A.

Personal Jurisdiction

When a defendant moves pursuant to Rule 12(b)(2) to dismiss
a complaint for lack of personal jurisdiction, "the burden [is]
on the plaintiff ultimately to prove grounds for jurisdiction by
a preponderance of the evidence."

Carefirst of Md., Inc. v.

Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.
2003).

"When, however, as here, a district court decides a

pretrial personal jurisdiction motion without conducting an
evidentiary hearing, the plaintiff need only make a prima facie
showing of personal jurisdiction."

Id.

In making its

determination, the court is to "take all disputed facts and
reasonable inferences in favor of the plaintiff."

Id.

Plaintiff's claim is based upon the allegation that
"[b]etween January 2013 and June 2013, Defendants' collectors
. . . placed repeated harassing telephone calls to Plaintiff's
cellular telephone."

Compl. ¶ 15.

Plaintiff does not allege

that any relevant action was taken within Maryland or that the
effects of any alleged wrongful action were felt in Maryland.
Nor does Plaintiff deny that Defendants are California
corporations with their respective principal places of business
in that state.
In Maryland, personal jurisdiction may be based upon
specific jurisdiction (relating to the particular cause of
action) and general jurisdiction.

See, e.g., Bass v. Energy

Transp. Corp., 787 F. Supp. 530, 534 & n.23 (D. Md. 1992).
To exercise specific jurisdiction, the cause of action must
"arise[] out of or [be] related to the defendant's contacts with
the [Maryland] forum."

Id. at 534 n.23.

Plaintiff has

presented nothing to support any claim that specific
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jurisdiction exists.

Nothing is alleged to have happened in

Maryland, or to have happened out of Maryland with in-state
consequences, out of which the claimed cause of action arose.
Regarding general jurisdiction, the Supreme Court of the
United States has, this year, clarified the standard for a
constitutionally valid exercise of general jurisdiction,
stating:
Goodyear [Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. ___, 131 S. Ct. 2846 (2011)]
made clear that only a limited set of
affiliations with a forum will render a
defendant
amenable
to
all-purpose
jurisdiction there. "For an individual, the
paradigm forum for the exercise of general
jurisdiction is the individual's domicile;
for a corporation, it is an equivalent
place, one in which the corporation is
fairly regarded as at home."
With respect
to a corporation, the place of incorporation
and principal place of business are . . .
"bases for general jurisdiction." . . .
Goodyear did not hold that a corporation may
be subject to general jurisdiction only in a
forum where it is incorporated or has its
principal place of business; it simply typed
those places paradigm all-purpose forums.
. . .
. . . Accordingly, the inquiry under
Goodyear
is
not
whether
a
foreign
corporation's in-forum contacts can be said
to
be
in
some
sense
"continuous
and
systematic,"
it
is
whether
that
corporation's "affiliations with the State
are so 'continuous and systematic' as to
render [the corporation] essentially at home
in the forum State."

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Daimler A.G. v. Bauman, ___ U.S. ___, 134 S. Ct. 746,
760-61 (2014) (citations omitted).
Taken at face value, Plaintiff's allegations do not present
even a colorable contention that this Court could subject
Defendants to general jurisdiction.

The fact, if it is a fact,

that Defendants have a business location in Maryland with
employees is by no means adequate to create a valid basis for
general jurisdiction.

To hold otherwise, as Plaintiff suggests,

would be to render essentially every entity that has any
significant operation in this State to general jurisdiction to
the same degree as if Maryland were its principal place of
business.
Defendants are entitled to dismiss for lack of personal
jurisdiction.

B.

Transfer

Plaintiff seeks, as an alternative to dismissal of the
case, a transfer to the U.S. District Court for the Southern
District of California.
"For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil
action to any other district or division where it might have
been brought. . . ."

28 U.S.C. § 1404(a) (emphasis added).

Plaintiff states that "Defendants . . . do not dispute that
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personal jurisdiction in this matter does exist in the . . .
Southern District of California."

[Document 7-1] at 6.

There

is no doubt that, as California corporations, Defendants would
be subject to personal jurisdiction within any district within
that state, but it is not necessarily true that venue would lie
in the Southern District as to each Defendant.
Under the circumstances, the Court will provide an
opportunity for Plaintiff to obtain a stipulation, or to file a
motion, regarding transfer.

C.

Conclusion

For the foregoing reasons:
1.

Defendants' Motion to Dismiss Plaintiff's Complaint
Pursuant to Fed. R. Civ. P. 12(b)(2) [Document 6]
is GRANTED.

2.

By July 18, 2014, Plaintiff may file a motion
seeking transfer pursuant to 28 U.S.C. § 1404 or a
stipulation agreeing to a transfer.

3.

In the absence of a timely motion or stipulation,
Judgment shall be entered dismissing the instant
lawsuit due to a lack of personal jurisdiction.

SO ORDERED, on Thursday, June 19, 2014.

/s/___
__ _
Marvin J. Garbis
United States District Judge

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