Chase Bank USA, N.A. v. NAES, Inc. et al

Filing 114

ORDER Denying 80 Motion to Dismiss. Granting in part and Denying in part 103 Motion for Hearing. Denying 81 Motion to Dismiss. Signed by Judge Edward C. Reed, Jr on 1/8/10. (Copies have been distributed pursuant to the NEF - AXM)

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CHA SE BANK USA , N . . A

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) ) Plaint iff , ) ) vs . ) ) NA E S, lncw a Nevada corporation; ) MICHAEL FITZPATRICK, an individuali) STFLLA R SERVICES GROUP, an ) organization of unknown origin; ) CHRISTOPHER ROBINSON, an ) individual; THERESA LYNN MATSON , ) an individual , ) ) Defen dant s . ) ) )

2 :O7-CV-97 S-ECR-GWF

Order

17

Plaintiff Chase Bank USA, N . . ( A MChase') a.-eges that ' ll
various debt elim in ati on schemes , which submit m erit les s bi lling disputes

1 Defendants are engaged 8

1 have induced Chase customers 9

20 and fi1e frivolous lawsuits against Chase . Now before the Court are

21 a motion

dismiss ( ) filed by Defendant Theresa Matson and a #8O

22 motion to dismiss ( 81) filed by Defendant Stellar Services Group # i 23 ( nStellar Services'). ' In additionr Stellar Services has filed Local Rule 78-2' ( 103). '#

24 nMotion for Oral Argument Pursuant
25 26
27 28

The motions are ripe, and we now rule on them .

1 2

I . Factual and Procedural Backcround This lawsuit was filed on July 23, 2007 , and Chase 's First

3 Amended Complaint (A 'FAC') ( 64) was filec on March l9, 2009 . Chase '# i 1
4 alleges that Defendants are involved in ' frauculen t or fictitious % i

5 debt elimination schemes' conducted 'v ia the lnternet and other ' '

6 marketing routes.' '

( FAC % ll ( 64).) As part of these schemes, #

7 consumers are advi sec , for example , to file false claim s of h i11ing i ) 8 errors using form document s provided by Defendant s, and which lack 9 'an y individualized, fact-based claim s specific to a given credit '

1 car account or credit card customer .' 0 '

( . % 28 .) The consumers Id

11 are advised to f ollow up with further form documents when the claims

1 are denied, extending the processing of the claims . 2

( . % 29 .) Id

13 Numerous meritless lawsuits have been f iled by consumers act ing on 14 the advice of Defendants , and using form pleadings , discovery

1 requests , and motions provided by Lefendants . 5

( . % 30 .) Chase Id

1 has been forced to expend significant resources to process the 6
17 claims and cefend the lawsuits filed by consumers at the instigation i

1 of Defendants. 8

( . % 35.) in acdition , sore Cbase customers have Id i n

19 stopped making payments and defaulted on their obligations to Chase

20 on the advice of Defendants .

( .) Id

Further, Chase argues that its

2 1 reputation is being damaged by the false allegations of illegal

22 act ivity contained in the form complaint s provided to consumers by

23 Defendants .
24

( i) Ic .

25
1 The facts described herein are taken from Chase 's Fi rst Amended 26 complaint and presumed to be true , as appropriate on a motion to d ism iss . See in re Stac Elecs . Sec . Litic ., 8 9 F .3c 1399 , 14 03 ( r 1 9th 27 Cir . 19 96 ).
28 2

1

Defendant NAES, Inc. IA AES/), is a corporation that began 'N '

2 providing such fraudulent debt elimination services to Chase

3 customers uby late 2006.' /

(Id . % 32 .)

Defendant Michael

4 Fitzpatrick was the sole officer , director and shareholder of NAES,

5 and oversaw and directed the business of NAES.

( d . % 3.) I

In

6 February 2008, Fitzpatrick filed dissolution papers for NAES with

7 the Nevada Secretary of State .

( d . 1 36 .) Chase alleges, however, I

8 that the assets and business operations of NAES were transferred to 9 Stellar Services, which is run by Matson and Defendant Christopher

1 Robinson , as well as others who have not yet been identified . 0

( d. i

11 %% 4-5, 37.)
1 2 Chase's First Amended Complaint asserts six claim s for relief:

1 (l) Preliminary and Permanent Tnjunction; ( ) intentional 3 2
1 lnterference with Contractual Relations; ( ) Defamation; ( ) Civil 4 3 4 1 Conspiracy; ( ) Alter Ego Against NAES and Fitzpatrick; and ( ) 5 5 6
16 Alter Ego Against Stellar Servicesr Robinson and Matson .

1 7

Matson's motion to dismiss ( 80) was filed on May 26, 2009. 4

1 Chase opposed ( 88) tbe motion ( 80); no reply was filed . Stellar 8 # # 1 Services' motion to dismiss ( 81) was filed also on May 26, 2009. 9 #
20 Chase opposed ( 89 ) the motion ( 81 ), and Stellar Services replied # #

21 ( 92). Stellar Services' motion ( 103) for oral argument on its # # 22 motion to dismiss ( 81) was filed on September 2, 2009. Chase di; # 23 not file a response to the motion for oral argument ( 103). #
24

25 26

II. Matson's Motion to Dismiss ( 80) # Matson's motion to dismiss ( 80) raises four basic issues. #

27 First, she argues that the Court lacks personal jurisdiction over
28 3

1 her, and seeks dism issa l on that basis pursuant to Federal Rule of

2 civil Procedure 22( ) ( ). Second, in the alternative, she suggests b2
3 that the District of Nevada is an inappropriate venue under 28 4 U .S .C . 5 1391. Third, she asserts that Chase's First Amended 5 Complaint fails to state a claim , and seeks dism issal pursuant to

6 Federal Rule of Civil Procedure 12 ( )(6). Finally, she challenges b
7 whether the amount in controversy requirement for diversity

8 jurisdiction is satisfied; this argument falls under Federal Rule of
9 Civil Procedure l2 ( ) ( ), dismissal for lack of subject matter b1 1 jurisdiction, though she fails to cite to that rule. We will 0
11 address each of Matson's arguments separately .
12 A . Personal Jurisdiction

13

The plaintiff bears the burden of establishing that this Court

1 has personal and subject matter jurisdiction over the defendant. 4
1 See Mattel, Inc. v . Greiner & Hausser GmbH, 354 F .3d 857, 862 (9th 5

1 Cir. 2003). A motion to dismiss for lack of jurisdiction may attack 6
17 the sufficiency of the complaint, or it may be made as a nspeaking

1 motion' attaeking the existence of jurisdiction as a matter of fact. 8 '
19 Thornhill Pub . Co ., Inc . v . Gen . Tel . & Elecs. Corr w 594 F.2d 730,

20 733 ( th Cir. 1979). 'Where the jurisdictional issue is separable 9 ' 21 from the merits of the case, the judge may consider the evidence 22 presented with respect to the jurisdictional issue and rule on that
23 issue, resolving factual disputes if necessary .' 1d . ' However, 24 absent an evldentiary hearing, the plaintiff 'need only make a prima '

25 facie showing of jurisdiction to survive the motion to dis iss .' m '
26 Mattel, 354 F.3d at 862 . Further, absent an evidentiary hearing,

27 the non-movant's version of any contested facts must be taken as

28

4

1 true. Rhoades v. Avon Prods., lncw

504 F.3d 1151, 1160 ( th Cir. 9

2 2007). Herey Matson makes no arguments regarding jurisdiction based
3 on the sufficiency of the complaint . Rather, she appears to attack

4 the existence of jurisdiction as a matter of fact, based on the
5 circumstance that she Adoes not reside in the District of Nevada nor '

6 does g he l conduct business in this district.' s ' 7 ( 80).) 4

( .'s Mot. at 2 D

8

An analysis of personal Jurisdiction has two components.

9 First , there must be a statute that gives the court authority to

1 exercise jurisdiction . Data Disc Inc . v . Svs. Tech . Assoc . Inc ., 0
11 557 F . 1 1280 , 1286 (9th Cir . 1977). Secondr the exercise of 2:

1 jurisdiction must meet Constitutional due process standards. ld . 2
1 Because there is no applicable federal statute governing personal 3 .

1 jurisdiction, our starting point is Nevada's long-arm statute . See 4
1 Fed . R. Civ . P. 4 ( ( ) ( ); Doe v . Unocal Corr ., 246 F .3d 9l5r 923 5 k) l A
1 ( ) Cir . 2 002 ) ( er curiam ) . Nevada #s long-arm statute permits tie 6 9ti n p n

1 exercise of jurisdiction to the limits of due process. NE . REv. 7 v
18 STAT. 5 l4 .065; See Abraham v . Acusta, S . . ., 968 F. Supp . 1403, f PA

1 1407 ( . Nev. 1997). Thusr our analysis of personal jurisdiction 9 D
20 under Nevada's long-arm statute and the Constitution collap se into .

21 one, and we consider only whether the exercise of jurisdiction
22 comport s with the Fourteenth Amendment 's due proce ss requirement s .

23

A court may have personal jurisdiction over a defencant in one l

24 o f two way s : genera1 or specif ic . Reebo k Int 'l Ltd . v . Mclau qh lin , a-

25 49 F .3d 1387, 1391 ( 9th Cir . 1995). Though Chase argues that

26 exercise of general personal jurisdiction over Matson would be
27 approp riate , there is no need to decide that issue : spec i fic : 28 5

1 jurisdiction alone would be sufficient to survive Matson's motion to
2 dismiss . 3 The N inth Cir cu it ha s e st ab l ishe d a t hree -p rong te st fo r

4 analyzing a claim of specific personal jurisdiction ; r
5
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( The non-resident defendant must purposefully direct 1)
h is activities or consurm at e some transaction with the c forum or resident thereof ; or perform some aet by which he pu rpo se fully avails himself of the privilege of conducting activities in the forum , thereby invoking the benefits and p rot ect ion s o f its law s ;

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( ) the claim must be one which ari ses out of or relates 2
t o the defendant 's forum-related activities ; and

9
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( ) the exercise of jurisdiction must comport with fair 3 play and substantial justice , i . ., it must be reasonable . e
The plaintiff bears the burden of satisfying the first two prongs of tbe test . If the plaintl ff f ails to .

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not establi shed . lf the plaint iff succeeds ln satisfying 10th of the first two prongs, the burden then shifts to the defendant to present a compelling case that the

satisfy either of these prongs, personal jur1sciction is i

1 3

exercise of jurisdiction would not be reasonable .

1 Schwarzenec qer v . Fred Martin Motor Co .# 37 4 F .3d 7 97 , 8 02 (9th Cir . 4 f

1 2004) ( 5 internal citations and quotation marks omitted).
16 Chase asserts that Matson has repeatedly engaged in business in

17 Nevada and witi Nevada residents , and has presented evicen co n i 18 relating to one instance of such business activity . Matson engaged 19 in extensive correspondence via e-mail with Lance Taylor-Warren, a 20 Chase custom er who utilized the services of Defendants and 21 eventually initiated litigation against Chase using documents and

22 legal advice provided to him by Matson . 23 C, D, and E .)

( See P.'s Opp . ( 8) Exs . #8

lt is precisely the sorts of services provided to Mr.

24 Taylor-Warren by Matson that give rise to Chase's claim s . 25 The matter is complicated somewhat by the circumstance that Mr .

26 Taylor-Warren was a customer of NAES , and Matson was apparently an
27 employee of NAES at the time of their interactions . Matson argues 28 6

1 that her activities on behalf of an employer should not give rise to

2 personal jurisdiction over her as an individual. The Supreme Court

3 has rejected, however, the notion that uemployees who act in their
4 official capacity are somehow shielded from suit in their individual 5 capacity .' Keeton v . Hustler Maaazine, (65 U.S . 770, 78l n .l 3 '

6 ( 984); see also Calder v . Jones, 465 U .S. 783, 790 ( 984) l l
7 (A ' Petitioners are correct that their contacts with Cali fornia are

8 not to be judged according to their employer's activities there . On
9 the other hand , their status as employees does not somehow insulace

1 them from Jurisdiction .' . In other words, the existence of a 0 ') 11 corporate form does not create a due process limit on jurisdiction
1 over the employees of a corporation . Davis v . Metro Proc s ., lnc . 2 i

1 885 F.2d 5l5, 520-522 ( 3 9th Cir . l969) ( discussing Calder and
1 Keeton ) . Though some states have adopted a 'fiduciary shield' 4 ' '
15 doctrine that would create such a limit , Nevada is not such a state ;

1 rather , as noted above , Nevada's long arm statute permits exercise 6

17 of Jurisdiction to the limits of due process . See NEv. REV. )
18 ST T . f 14 .0 65 ; c .f . Marine Midland Bank, N . . v . Miller, 664 F . 1 A l A 2:

1 899, 902 ( Cir . l98l) ( 9 2d explaining fiduciary shield doctrine as 20 formerly applied under New York long-arm statute). Moreover, Chase
21 has alleged that Stellar Services has taken over the business of 22 NAES since the latter 's dissolution , and that Stellar Services is an 23 alter ego of Matson . 24 Taking all reasonable inferences in the non-m oving party 's

25 favor, as we must in the present procedural posture , it appears that 26 Matson 's business activities in Nevada on behalf of NAES and later, 27 allegedly, Stellar Services , satisfy all three prongs of
28 7

1 Schwarzenecqer test with regarc to personal jurisdiction over her l i 2 individually, as well. As such, we have personal jurisdiction over 3 Matson, anc her arguments to the contrary are rejected . i
4 5 B . Venue In a diversity case , venue is appropriate in i district where l

6 ( ) any defendant resides , if a11 defendants reside in the same l 7 state , ( ) a substantial part of the events giving rise to the claim 2

8 occurred, or ( where any cefendant is subject to personal 3) i
9 jurisdiction at the tlme the action is cort enced, if there is no r m
10 district in which the action may otherwise be brought . 2 8 U .S .C . f ;

11 1391 ( ). Matson's argument that Nevada is an inappropriate venue a
12 invokes only the first of these subsections , asserting that Matson 13 does not reside in Nevada, nor does she conduct business here . 1 4 As discussed above , the evidence does not support the second

15 part of Matson 's argument : it appears that she has conducted 16 business in Nevada . ln any case , Matson offers no evidence or

17 argument that demonstrates venue in Nevada would not be appropriate

18 pursuant to 28 U .S.C. ! 1391 ( ) ( ), as a place where a substantial ; a2
19 part of the events giving rise to Chase's claims occurred . Chase's 20 claims are based , at least in part , on debt elim in at ion schemes 2 1 involving Chase customers wi o are Nevada residents , and who filed 'n

2 claim s and lawsuits against Chase in Nevada . A s such , a substantial 2 23 part o. the events giving rise to Chase's claims occurred in Nevada . f

24 Thus, venue is proper in Nevada pursuant to 28 U .S.C . 5 l39l ( ) ( ). a2
25 26 C . F' ilu re to State a Claim a Matson's argument that Chase's First M e nded Complaint fails to

27 state a claim upon which relief can be granted is based in part cn a 28 8

1 purported lack of speci fieity . Matson asserts that Chase 'has ; '

2 failec to identifj any damages with the exception of possible legal z ? 3 fees and cost s associated with lit igation against its cardholcer s .' i '

4 ( ot . at 4 ( O).) M #8

Further, Matson notes that Chase Ahas failed to '

5 identify any specific action against any cardholder ( ) gin) which it s ! 6 has incurred any legal fees or costs.' '
7

( .) ld

Federal Rule of Civil Procedure 6 ( ) does not require a a

8 plaintiff to plead the details that Matson asserts are lacking from 9 Chase's First M end ed Complaint . The First Amended Complaint ( 64 ) #
10 contains na short ant plain statement of tbe grounds f or the court 's j

11 jurisdiction ,' ua short and plain statement of the claim showing '
1 that the pleader i s entitled to relie f ,' and E 'dem a nd for the 2 ' :' 1 relief sought .' FED. R . CI . P . 8 ( ) . Indeed , Chase's complaint 3 ' v a
1 describes the factual basis for its claim s in some detail , as we 4 15 have surm ari zed above . a Though the specific Chase cu st om er s who have

16 acted on Defendants' alleged debt elimination schemes are not named , 17 Matson has demonstrated no reason why a heightenec pleading i 18 standard, so as to require such details , should be required in this

1 ca se . 9 20 Mat son further as serts that the First M end ed Complaint nfails 21 to establish any damages whlch have not already been awarded

22 previously .' '

( ot . at 5 ( 0).) M #8

The premise underlying this

23 assertion is that the only damages claimed by Chase are attorney's
24 fees and court costs incurred in litigation with cardholc e rs . i

25 Matson assumes that Chase either would have already recoverec these i

26 alleged damages in tle judgments against the Chase customers, or n
27 28 9

1 that Chase was not entitled to such damages, because the customers
2 prevailed .

3

Matson's argument fails for several reasons . First, under the

4 American rule, a prevailing party normally does not recover 5 attorney's rees. See , e .q ., Buckhannon Bd . and Care Home, Inc . v .

6 W . Va . Deo 't of Hea1th and Human Res w 532 U . . 598, 602 ( 00 1) . S 2
7 Matson's assumption that if Chase prevailed in suits against the 8 eardholders it would have necessarily already recovered its costs 9 and attorney's fees is therefore flawed . 10 Moreover, Matson 's characterization of the damages sought by

11 Chase as lim ited to attorney's fees and costs is simply false . 1 Chase also seeks to recover sums lost due to customers defaulting on 2

1 obligations at the instigation of Defendants. 3

( AC % 35 ( 64).) F #

1 Further, Chase seeks damages to compensate for alleged injury to its 4
15 reputation from defamatory statements published by Defendants

1 regarding alleged illegal activity on the part of Chase. 6

( d . % 60I

1 63.) In addition, Chase seeks injunctive relief against any future 7
1 activity by Defendants similar to that which gave rise to this case . 8

1 ( d . % 48.) As such, even a cursory examination of Matson's Firs< 9I
20 Amended Complaint reveals that Chase does seek relief that has no2 1 already been awarded previously . 22 In short , Chase 's First Amended Complaint states a claim to

23 relief that is uplausible on its face .' Bell Atl. Corr . v . Twomblv, '

24 550 U . . 544, 570 ( 007). Matson's arguments to the contrary are S 2
25 without merit . As such , dismissil pursuant to Federal Rule of Civil

26 Procedure l2 ( )(6) would be inappropriate. b
27 28 1 0

1

D. Amount in Controversv

2

Matson challenges whether we have subject matter jurisdiction

3 over this action , arguing that Chase has A fa iled to substantiate a '

4 controversy that exceed E icq the sum or value of s 5 $75,000.00 . . . .' ' ( ot . at 2 ( 80).) As noted above, the burden M #

6 of establishing that the Court has jurisdiction over the defendant
7 lies with the plaintiff . Mattel, 354 F.3d at 862. Where the amount

8 in controversy is at issue, ' l q justify dismissal, it must appear 't o
9 to a legal certainty that the claim is really for less than the

1 jurisdictional amount.' Crum v. Circus Circus Entersw 231 F.3d 0 '
11 1129, 1131 ( th Cir. 2000) ( nternal quotation marks omitted). 9 i

1 Thus, because the burden of proof to establish jurisdiction lies 2
13 with t%e plaintiff, Chase must show that it does not appear to a
1 legal certainty that its claims are for less than the required 4 15 amount. United States v . S . Pac. Transr . Co ., 543 F.2d 676, 682

1 ( th Cir. 1976). 69 1 7 Matson's argument that the amount in controversy requirement is
1 not met is based on the premise, discussed above in a different 8 1 eontexts that the only dam age s claimed by Chase are attorney's fees 9 20 and court costs incurred in litigation with cardholders . Matson 21 asserts that Chase either would have already recovered these alleged

22 damages in the judgments against the Chase customersr or that Chase
23 was not entitled to such damages, because the customers prevailed . 24 Matson's argument fails here, too, and for similar reasons .

25 Dnder the American rule r a prevailing party normally does not 26 recover attorney 's fees. See, e . ., Buekhannon, 532 U .S . at 602. g

27 Matson 's assumption that if Chase prevailed in suits against the 28 11

l cardholders it would have necessarily already recovered its costs
2 and attorney's fees is therefore flawed . Furthermore, Matson 's

3 characterization of the damages sought by Chase as limited to 4 attorney's fees and costs is false. Chase additionally seeks to

5 recover sums lost due to custom ers defaulting on obligations at the

6 instigation of Defendants.

( AC % 35 ( 64).) Also, Chase alleges F #

7 damage to its reputation from defamatory statements published by
8 Defendants regarding alleged illegal activity on the part of Chase .

9 ( d . % 60-63.) Moreover, Chase seeks injunctive relief against any I
10 future activity by Defendants similar to that which gave rise to

11 this case.

( d . % 48.) I

The amount in controversy requirement may

1 be met wbere tbe value of the injunction sought to either party 2
1 meets or exceeds the statutory minimum . 3 See Mccaulev v . Ford Motor 1 Co . (In re Ford Motor Co./citibank tS.D.), N .A .), 264 F.3d 952, 958 4

1 ( th Cir. 2OOi). Any of these eategories of damages could 59

1 potentially exceed the jurisdictional amount. 6
17 We conclude that Ohase has met its burden of demonstrating that

1 it does not appear to a legal certainty that the amount in 8

1 controversy is less than the jurisdictional amount. As such, we 9 20 have subject matter jurisdiction over this case, and Matson's motLon
21 will be denied in that respect .

22

23
24

111. Stellar Services' Motion for Oral Arm 4 ent ( 103) m #
Stellar Services requests oral argument on its motion to

25 dismiss ( 81), pursuant to Local Rule 78-2. Local Rule 78-2 #

26 provides that ' a qll motions may, in the court's discretion, be U
27 considered and decided with or without a hearing .z Having now z 28 12

l examined the papers filed in support of and in opposition to Stellar 2 Services' motion to dis is s ( 8 1), we will deny Stellar Services' m #
3 request for oral argument . The issues raised by the motion anā the

4 arguments of the parties are clear from the papers, and it does not 5 appear that oral argument would be helpful to the Court .
6 In the alternative to its request for oral argument, Stellar

7 Services requests a ruling on its motion to dismiss ( 81 ) at the # 8 Court's A earlie st convenience . ' This request is granted : we now ' ' 9 turn to consideration of the merits of the motion . 1 0 11 1 2

IV . Steilar Services' Motion to Dismiss ( 81) #
Stellar Services' motion to dismiss ( 81 ) asserts the same #

1 arguments as Matson's motion to dismiss ( 80) . Indeed, the two 3 #
14 motions are virtually identical , except for the name of the moving

1 party - they even share many of the same typographical errors. 5 1 Though the evidence presented by Chase relates to business dealings 6 1 by Matson, on behalf of NAES, it is also alleged that Stellar 7 1 Services has taken over the business of NAES, including its business 8 1 conducted in Nevada, and no evidence has been submitted that would 9
20 demonstrate otherwise . As such , though the evidenee of personal

21 jurisdiction is somewhat weak with regard to Stellar Services, in
22 particular, it is suffieient in the present procedural posture . We
23 need not elaborate further on the other issues raised by Stellar

24 Service's motion ( 81); our discussion above suffiees. The motion # 25 ( 81) will be denied. #
26
27

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1 3

1

V . Conclusion

2

We hive specific personal jurisdiction over b0th Matson and

3 Stellar Services , on the basis of the business activities they
4 conduct in Nevada that have given risū to Chase 's claim s . Venue is

5 proper in Nevada because Nevada is the district where a substantial 6 part of the events giving rise to the claim occurred . We have

7 subject matter jurisdiction, because the amount in controversy
8 appears to be satisfied . Finally, Chase's First Amended Complaint 9 does not fail to state a claim ; the allegations are made with the 10 requisite specificity to satisfy Federal Rule of Civil Procedure

11 8 ( ) , and Chase's claims for damages are not limited to amounts a
12 already recovered in other cases . 13 14

IT IS , THEREFORE , HEREBY ORDERED that Matson 's motion to

15 dismiss ( 80 ) is DENIED . # 1 6 17
IT IS FURTHER ORDERED that Stellar Services' motion for oral

1 argument ( 103) is GRANTED IN PART and DENIED IN PART on the 8 #
19 following basis : Stellar Services' request for oral argument is

20 denied; its request for a ruling on its motion to dismiss ( 81) #
21 at the Court's Aear lie st convenience' is granted . ' '

22

23 //
24 //

25 // 26 //
27
28 I 4

IT IS FURTHER ORDERED that Stellar Services' motion to dismiss
DEN IED .

Jn ay 2 , au r
C w.
UN ITED STATES DISTRICT JUDGE