Sebrow v. Zucker, Goldberg & Ackerman, LLC

Filing 15

MEMORANDUM & ORDER: Zucker's motion to dismiss for improper venue is DENIED; Zucker's alternative motion for transfer in the interest of justice is GRANTED. Zucker's motion to dismiss for failure to state a claim for which relief can be granted is DENIED with prejudice. The Clerk of Court shall transfer this case to the United States District Court for the District of New Jersey. Ordered by Judge Nicholas G. Garaufis on 3/15/2012. (Lee, Tiffeny)

FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E.D.N.Y.

D/F

* MAR162012 *

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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AVROHOM SEBROW,

BROOKLYN OFFICE
MEMORANDUM & ORDER

Plaintiff,

10-CV-4767 (NGG) (RLM)

-againstZUCKER, GOLDBERG & ACKERMAN,
LLC,
Defendant.

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NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Avrohom Sebrow has brought this putative class action against Defendant
Zucker, Goldberg & Ackerman, LLC ("Zucker"), alleging that certain actions Zucker took
pursuing a foreclosure action against Sebrow's property constituted violations of the Fair Debt
Collection Practices Act, 15 U.S.C. 1692 et seq. ("FDCPA"). (Compl. (Docket Entry#

I)~~

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I 0.) Zucker now moves for dismissal for improper venue pursuant to Federal Rule of Civil
Procedure 12(b)(3); or, in the alternative, for transfer of the case to the United States District
Court for the District of New Jersey in the interest of justice, pursuant to 28 U.S.C. § 1404(a); or,
in a further alternative, for dismissal for failure to state a claim for which relief can be granted
pursuant to Rule 12(b)(6). (Mot. to Dismiss (Docket Entry# 13) at I; Am. Mem. in Support of
Mot. to Dismiss (Docket Entry# 14) at 4, 8, 13.) 1

Zucker asks the court to accept its March 25, 2011, amended memorandum of law in place of its February
18, 2011, original memorandum. (Sayles Dec!. (Docket Entry# 14-2), 5.) Zucker represents that the differences
between the two memoranda are only typographic. (Mh, 3.) As Sebrow has consented to the submission of the
amended memorandum (ilL, 4), the court GRANTS Zucker's request and considers Zucker's amended
memorandum rather than its original one.

I

For the reasons discussed below, Zucker's motion is DENIED in part and GRANTED in
part.

I.

BACKGROUND
Sebrow is a New York resident and a "consumer" as the FDCP A defines the term.

(Compl. '1['1[4-5.) Zucker is a New Jersey business and "debt collector" as the FDCPA defines
that term. (M,_ '11'11 6-8.) Zucker mailed a notice, summons, and complaint relating to a
foreclosure to Sebrow in New York; Sebrow alleges that this set of documents violated the
FDCPA in various ways. (ld. '1['1[6, 9-10.) Sebrow seeks the certification of a class of all
consumers who have received debt collection notices from Zucker relating to foreclosure actions.
(ld. '1[11-12.)
Sebrow attached redacted copies of the relevant foreclosure notice and complaint to his
Complaint; Zucker provides un-redacted versions in its Motion to Dismiss. (Sayles Dec!.
(Docket Entry# 13-3) Ex. B.) The un-redacted versions show that Zucker, a law firm with
offices in New Jersey and Pennsylvania, initiated foreclosure proceedings regarding a piece of
real property in Camden, New Jersey, on behalfofHSBC. C!QJ Sebrow was the mortgagor of
the property, and so was the defendant in the foreclosure action. (ld.) The foreclosure
proceeding was initiated in the Chancery Division of the Superior Court of New Jersey, located
in Camden County, New Jersey. (Jd.) Zucker attempted to mail the foreclosure complaint and
accompanying materials to Sebrow at multiple addresses: two addresses in New Jersey, and one
in Far Rockaway, New York. (!gj
Sebrow has also litigated another FDCP A case against a different Jaw firm in the United
States District Court for the District of New Jersey. See Sebrow v. Fein, Such. Kahn, &
Shephard, P.C., No. 10-cv-215 (JLL) (CCC) (D.N.J. Nov. I, 2010.)

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II.

DISCUSSION
A.

Rule 12(b )(3) Motion to Dismiss

Zucker first argues that Sebrow' s Complaint should be dismissed for improper venue,
pursuant to Rule 12{b)(3). Venue is proper in the Eastern District of New York if this District
qualifies under one of the categories described in 28 U.S.C. § 1391(b). According to§ 1391(b),
venue is proper in any district where either (1) a defendant is a resident, or (2) where a
substantial part of the events giving rise to the claim occurred, or (3) where a defendant can be
found, ifthere is no district court where venue is otherwise proper. 28 U.S.C. § 1391 (b)(l)-(3).
When a defendant challenges the plaintiffs choice of venue, the plaintiff must prove his venue
choice is proper. ESI, Inc. v. Coastal Power Prod. Co., 995 F. Supp. 419,424 (S.D.N.Y. 1998).
Zucker argues that Sebrow's choice of venue was improper. Zucker points out that it is
resident in New Jersey, and so§ 1391(b)(l) cannot apply. (Am. Mem. in Support of Mot. to
Dismiss at 5.) Further, since Zucker is resident in New Jersey and so venue would be proper in
that district,§ 1391(b)(3) does not apply either. (Am. Mem. in Support of Mot. to Dismiss at 7.)
So, if Sebrow's choice of venue is proper, it must be because of§ 1391 (b )(2). And indeed,
Sebrow premised venue in the Eastern District of New York on his claim that a substantial part
of the events giving rise to his claim occurred in this District. (Compl. ~ 3.) Sebrow alleges that
he received the foreclosure complaint and notice at his New York address. (Compl.

~

6.)

Receipt of a communication is, according to Sebrow, a substantial part of the acts giving rise to
his claim and, as a result, venue is proper in this District. (Opp. Mem. to Mot. to Dismiss
(Docket Entry# 13-5) at 1-2.)
Zucker opposes Sebrow's reliance on§ 1391(b)(2). Zucker argues that the mere receipt
of a communication in New York should not be considered a substantial part of the events that

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gave rise to Sebrow's claim. (Am. Mem. in Support of Mot. to Dismiss at 5-6.) Zucker argues
that most of the events that gave rise to Sebrow's suit occurred in New Jersey-such as the
underlying foreclosure action and the preparation of the complaint and notice. (ld. at 6.) Zucker
also represents that it sent notices to each of the addresses it had for Sebrow, including several
New Jersey addresses. (ld. at 6 n.3; Sayles Decl. Ex. B.) Thus, Zucker argues, if receipt of a
communication is a substantial portion of the events giving rise to a FDCPA claim, then there is
yet another connection between New Jersey and this cause of action. (Am. Mem. in Support of
Mot. to Dismiss at 6 n.3.)
Zucker's argument, however, is foreclosed by clear Second Circuit precedent. In Bates v.
C & S Adjusters, Inc., 980 F.2d 865 (2d Cir. 1992), the Second Circuit considered whether a
FDCPA plaintiff had selected a proper venue by suing in the Western District of New York when
the only event that occurred there was the plaintiff's receipt of the communication that allegedly
violated the FDCPA. !d. at 866. The Court of Appeals noted that receipt of a communication is
likely a necessary part of a claim under the FDCP A; the harm that Congress intended the
FDCPA prevent occurs only once the putative debtor receives the notice that violates the statute.
!d. at 868. Following on those observations, the Court of Appeals held that receipt of a
communication is sufficiently important to be considered a "substantial part" of the events that
give rise to an FDCPA claim. !d. This holding disposes of Zucker's claim that a venue selection
predicated on the site that a plaintiff received a communication is improper. 2 Zucker's point that
if receipt of a notice in New York is sufficient to make venue in New York proper, then venue is
also proper in New Jersey (where Zucker also sent notices), is true but irrelevant for determining

Zucker attempts to distinguish Bates from the instant case. (See Def. 's Reply Mem. (Docket Entry# 13-6)
at 1-2.) Zucker's arguments are unavailing; the Bates court did not limit its holdings to FDCPA claims involving

unsecured debtors. If anything, the defendant in Bates made a stronger case for improper venue, because the
defendant in Bates did not address the challenged notices to the debtor's New York address. 980 F.2d at 866.

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whether Sebrow's claim should be dismissed for improper venue. Section 1391 does not
mandate that only one district court be considered proper venue. See Bates, 980 F.2d at 867.
Zucker's request for a dismissal of the case pursuant to Rule 12(b)(3) is therefore denied.

B.

Motion to Transfer Pursuant to 28 U.S.C. § 1404(a)

Having denied Zucker's motion to dismiss Sebrow's Complaint due to improper venue,
the court considers Zucker's request in the alternative for the transfer of the case to the United
States District Court for the District of New Jersey pursuant to 28 U.S.C. § 1404(a). 3
Section 1404(a) provides that: "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." Section 1404(a) thus calls for a two-part analysis. The first
question the district court must answer is whether the putative transferee district is a district
where the case "might have been brought," i.e., whether that district would have personal
jurisdiction over the defendant and be a proper venue for the dispute. The second question is
whether the "convenience of parties and witnesses [and] the interest of justice" weigh in favor of
transferring the case. See Hernandez v. Graebel Van Lines, 761 F. Supp. 983, 986 (E.D.N.Y.
1991 ). Courts weigh a number of non-dispositive factors in making that determination,
including: (I) the plaintiff's choice of forum; (2) the place where the operative facts occurred;
(3) the convenience of the parties; (4) the convenience of witnesses; (5) the relative ease of
access to sources of proof; (6) the relative means of the parties; (7) the availability of process to

Zucker also argues that the case should be transferred pursuant to 28 U.S.C. § 1406(a) and forum non
conveniens. (See Am. Mem. in Support of Mot. to Dismiss at 7-8.) Section 1406(a) is used only to transfer a case
that was filed in an improper venue: "[t]he district court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case . ... " Given the
court's ruling in Part li.A that venue is proper in this court, a transfer pursuant to§ 1406(a) would be inappropriate.
With regard to dismissal pursuant to forum non conveniens, that doctrine has been superseded by§ 1404(a) where

the alternative forum is a domestic court. See Frisofv. Swift Transp. Co., No. 08-cv-554 (NGG) (CLP), 2008 WL
4773059, at • I (E.D.N.Y. Oct. 30, 2008) (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706,722 (1996)).

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compel attendance of unwilling witnesses; and (8) the forum's familiarity with governing law.
See Tobey v. Nat'! Action Fin. Servs .. Inc., No. 09-cv-1917 (ARR) (JMA), 2009 WL 3734320,
at *2 (E.D.N.Y. Nov. 4, 2009) (collecting cases). The decision to transfer a case "lies within the
sound discretion of the district court." Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir.
1993).
Both Sebrow and Zucker agree that Zucker is a resident of New Jersey. (See Compl. '1]6;
Am. Mem. in Support of Mot. to Dismiss at 5, 9.) Because venue is generally proper in a district
in which the defendant is resident, see 28 U.S.C. § 1391 (a)(!), it is thus clear that the District of
New Jersey would be a proper venue for this case. Consequently, the first question in the §
1404(a) analysis has been answered in the affirmative-i.e., the putative transferee district, the
District of New Jersey, is a district where this case "might have been brought."
In order to resolve the second question-whether the convenience of witnesses and
parties, and the interests of justice, suggest the case should be transferred-the court will
consider the eight factors that Tobey and other district court opinions have referenced. At the
outset, the court notes that two factors-the convenience of witnesses and the availability of
process to compel attendance of unwilling witnesses--do not appear to weigh in favor of either
transferring the case to the District of New Jersey or keeping the case in this court, because
neither party has identified specific witnesses whose deposition or trial testimony would be
necessary for the disposition of this case, despite Second Circuit precedent which requires the
defendant to "clearly specify the key witnesses to be called" and the nature of their testimony.
Panama Process, S.A. v. Cities Serv. Co., 650 F.2d 408,417 (2d Cir. 1981); Tobey, 2009 WL
3734320, at *4-5.

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Moreover, another factor-the governing law to be applied--does not weigh in favor of
either transferring or retaining the case. The FDCPA is a federal statute, and either federal
district court is equally capable of interpreting and applying it. That factor is also neutral.
The factor that most clearly supports this court retaining the case is PlaintiffSebrow's
choice of this court as his preferred forum. Typically, a plaintiff's choice of forum is given
"considerable weight." Tobey. 2009 WL 3734320, at *3. However, in putative class actions, a
representative plaintiff's choice of forum is given less weight than in an individual action. In Re
Warrick, 70 F.3d 736,741 n.7 (2d Cir. 1995); Glass v. S & M Nutec, LLC, 456 F. Supp. 2d 498,
504 (S.D.N.Y. 2006). The representative's choice is still entitled to some deference, however.
DiReinzo v. Philip Servs. Com., 294 F.3d 21,28 (2d Cir. 2002). Thus, Sebrow's choice of the
Eastern District of New York weighs in favor of this court retaining the case, but does not weigh
as strongly in favor as it would in an individual action.
Four factors weigh in favor of transferring the case to New Jersey. Two factors-the
locus of operative facts, and the location of documents and sources of proof--clearly weigh in
favor of transfer. Zucker maintained an office and drafted the relevant documents in New
Jersey. (See Sayles Dec!. Ex. B.) The underlying real estate transaction and the foreclosure
proceeding both occurred in New Jersey. (See !d.) Thus, the bulk of what happened in this set
of events occurred in New Jersey, and the documents and other forms of proof involved were
produced in New Jersey. These facts suggest that obtaining the required documents and
developing a factual record may be done more efficiently in New Jersey.
Another factor--convenience of the parties-also weighs in favor of transfer, albeit less
obviously than the two discussed in the paragraph above. Sebrow, through his selection of the
Eastern District of New York as his preferred forum, clearly believes that New York is more

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convenient than New Jersey. Zucker, as a New Jersey law firm, finds New Jersey a more
convenient forum than New York. The tie-breaker, so to speak, between these two parties is
what is of greater convenience to the unnamed class members of the putative class. Although
those class members are not identified, and so their places of residence are unknown, the
common factor that all the class members would have in common is that they have been
defendants in foreclosure actions prosecuted by Zucker. (Compl., 11-12.) There is no
allegation that Zucker prosecutes foreclosure actions outside of New Jersey. On the record
before the court, it appears that the unnamed class members would all be land owners or former
land owners in the state of New Jersey. New Jersey is the only state to which the unnamed
parties must have a connection, and so the only state that the court can presume is convenient to
them. The court concludes that this factor weighs in favor of the District of New Jersey.
The fourth factor that weighs in favor of transferring the case, albeit with less clarity than
the first two factors in favor of transfer, is the relative means of the parties. The court does not
possess a great deal of information about the means of either Zucker-beyond that it is a New
Jersey-based law firm without a New York office--or Sebrow-beyond that he is a New York
resident who has owned several New Jersey properties. (See Compl. ,, 4, 6; Sayles Dec!. Ex.
B.) However, one crucial piece of information that Zucker has brought to the court's attention is
that Sebrow has prosecuted an FDCPA lawsuit against another law firm in New Jersey. See
Sebrow v. Fein, Such, Kahn. & Shephard. P.C., No. 10-cv-215 (JLL) (CCC) (D.N.J. Nov. I,
2010.) "Where a plaintiff has demonstrated a willingness to litigate in a distant court, courts
have weighed this factor against maintaining the case in plaintiffs preferred forum." Tobey,
2009 WL 3734320 at *5. Sebrow has shown he is willing and able to litigate in New Jersey; the
court believes this factor weighs in favor of transferring the case.

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Considering the eight factors that courts commonly reference in considering whether a
case should be transferred to another district, the court concludes that three are neutral, one
weighs weakly in favor of retaining the case, two weigh clearly in favor of transfer, and two
weigh weakly in favor of transfer. The court concludes that, on balance, it would be in the
interest of justice to transfer this case to the District of New Jersey. Therefore, the court grants
the request to transfer the case to the United States District Court for the District of New Jersey,
pursuant to 28 U.S.C. § 1404(a).

C.

Motion to Dismiss Pursuant to Rule 12(b)(6)

In light of the court's decision in Part II.B to transfer the case, the court denies Zucker's
motion in the alternative for dismissal of Sebrow's claim for failure to state a claim on which
relief can be granted without prejudice. Zucker may renew this motion before the United States
District Court for the District of New Jersey according to the Local Rules of that court.

III.

CONCLUSION
For the reasons discussed above, Zucker's motion to dismiss for improper venue is

DENIED; Zucker's alternative motion for transfer in the interests of justice is GRANTED.
Zucker's motion dismiss for failure to state a claim for which relief can be granted is DENIED
without prejudice. The Clerk of Court shall transfer this case to the United States District Court
for the District of New Jersey.

SO ORDERED.

s/Nicholas G. Garaufis
NICHOLAS G. GARAUFI§J
United States District Judge

Dated: Brooklyn, New York
March/5", 2012

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