Powell v. Monarch Recovery Management, Inc. et al
MEMORANDUM & ORDER granting Defendants' Motions to Dismiss for Improper Venue. For the reasons set forth in the attached Memorandum and Order, the Court grants Defendants' motions to dismiss this action as improperly venued and dismisses Plaintiff's action without prejudice. Ordered by Judge Margo K. Brodie on 1/22/2016. (Rolle, Drew)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------SHEILA T. POWELL,
MEMORANDUM & ORDER
MONARCH RECOVERY MANAGEMENT, INC.
and PROSPER MARKETPLACE, INC.,
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Sheila T. Powell brings the above-captioned action against Defendants Monarch
Recovery Management, Inc. (“Monarch”) and Prosper Marketplace, Inc. (“Prosper”), alleging
violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”), and
the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”). (Compl. ¶¶ 12–13, Docket
Entry No. 1.) On May 18, 2015, Prosper moved to dismiss the Complaint for improper venue
and failure to state a claim. (Prosper Mot. to Dismiss (“Prosper Mot.”), Docket Entry No. 5.)
On July 6, 2015, Monarch answered the Complaint, and subsequently filed an Amended
Answer. 1 (Monarch Ans., Docket Entry No. 10; Monarch Am. Ans., Docket Entry No. 14.) On
July 30, 2015, Monarch also moved to dismiss the Complaint for improper venue or, in the
alternative, to transfer the action pursuant to 28 U.S.C. § 1404(a). 2 (Monarch Mot. to Dismiss
On July 6, 2015, Plaintiff moved to strike Monarch’s initial Answer as untimely.
(Docket Entry No. 12.) The Court denied this motion on the record at the July 17, 2015
conference on Defendants’ motions to dismiss. (July 17, 2015 Minute Entry.)
At the July 17, 2015 conference, the Court directed Defendants to brief only the issue
of venue. (July 17, 2015 Minute Entry.) The Court accepted the venue arguments in Prosper’s
(“Monarch Mot.”), Docket Entry No. 15.) On August 16, 2015, Plaintiff moved for sanctions
against Monarch based on statements contained in its Answer . (Pl. Mot. for Sanctions (“Pl.
Sanctions Mot.”), Docket Entry No. 17.) For the reasons discussed below, the Court dismisses
the action and denies Plaintiff’s motion for sanctions.
The following allegations are accepted as true for purposes of this motion. Plaintiff, a
resident of Washington D.C., 3 alleges that Monarch, a Pennsylvania corporation, and Prosper, a
Delaware corporation, are debt collectors who collect debt from consumers by mail and
telephone. (Compl. ¶¶ 4–7.) At some unspecified time, Defendants attempted to collect a
consumer debt from Plaintiff. (Id. ¶ 9.) At some point, Monarch learned that Plaintiff was
represented by counsel, but “on numerous occasions after [Defendants] were aware that
[Plaintiff] was represented by counsel,” they continued to directly communicate with Plaintiff
regarding the consumer debt. (Id. ¶ 11.) According to Plaintiff, Defendants conduct was
“intentional, willful, frequent, and persistent.” (Id. ¶ 12.)
Standard of review
Pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure, a party may move to
dismiss a complaint for “improper venue.” Fed. R. Civ. P. 12(b)(3). In reviewing a Rule
12(b)(3) motion to dismiss, “[t]he legal standard . . . is the same as a motion to dismiss for lack
May 18, 2015 motion to dismiss and directed Monarch to file its motion to dismiss for improper
Plaintiff fails to specify her domicile in the Complaint, but the parties represented to
the Court that Plaintiff currently resides in Washington D.C. The Court accepts that
representation for purposes of this motion.
of personal jurisdiction.” Brown v. Web.com Grp., Inc., 57 F. Supp. 3d 345, 353 (S.D.N.Y.
2014) (citation omitted) (citing Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005)),
appeal dismissed (Mar. 13, 2015); see Gulf Ins. Co., 417 F.3d at 355 (applying the Rule 12(b)(2)
standard of review for dismissal for lack of personal jurisdiction to Rule 12(b)(3) dismissal for
improper venue). To survive a Rule 12(b)(3) motion to dismiss, “the plaintiff has the burden of
establishing that it has chosen the proper venue.” Gonsalves-Carvalhal v. Aurora Bank, FSB,
No. 12-CV-2790, 2014 WL 201502, at *3 (E.D.N.Y. Jan. 16, 2014) (quoting Jackson v. Am.
Brokers Conduit, No. 09-CV-6045, 2010 WL 2034508, at *1 (S.D.N.Y. May 13, 2010)).
“[Where] the court chooses to rely on pleadings and affidavits, the plaintiff need only make a
prima facie showing of [venue].” Gulf Ins. Co., 417 F.3d at 355 (second alteration in original)
(quoting CutCo Indus. v. Naughton, 806 F.2d 361, 364–65 (2d Cir. 1986)).
“In analyzing whether the plaintiff has made the requisite prima facie showing that venue
is proper, [courts] view all the facts in a light most favorable to plaintiff.” Magi XXI, Inc. v.
Stato della Citta del Vaticano, 714 F.3d 714, 720 (2d Cir. 2013) (quoting Phillips v. Audio Active
Ltd., 494 F.3d 378, 384 (2d Cir. 2007)). Where a plaintiff fails to make a prima facie showing
that venue is proper, 28 U.S.C. § 1406 requires that the court to “dismiss an action brought in the
wrong venue ‘or if it be in the interest of justice, transfer such case to any district or division in
which it could have been brought.’” Gonzalez v. Hasty, 651 F.3d 318, 324 (2d Cir. 2011)
(quoting 28 U.S.C. § 1406(a)). “Courts enjoy considerable discretion in deciding whether to
transfer a case in the interest of justice.” Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408,
435 (2d Cir. 2005) (citation omitted).
Venue is not proper in the Eastern District of New York
Defendants move to dismiss the Complaint as improperly venued in the Eastern District
of New York. (Prosper Mot. 3; Monarch Mot. 2–5.) Defendants argue that none of the parties
resides in New York State, nor did any of the conduct at issue occur in New York State.
(Prosper Mot. 3; Monarch Mot. 2–3.) Monarch asserts that because Plaintiff fails to plausibly
allege that Defendants regularly conduct business in New York State, the Court cannot exercise
personal jurisdiction over Defendants for purposes of establishing venue. (Monarch Mot. 4.)
Plaintiff concedes that none of the underlying conduct occurred in the Eastern District of New
York, or in New York State, but alleges that venue is proper pursuant to 28 U.S.C. § 1391(b)(1),
which provides for venue in “a judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located.” 28 U.S.C. § 1391(b)(1); (Compl. ¶ 2;
Pl. Mem. in Opp’n to Defs. Mots. to Dismiss (“Pl. Opp’n”) 2, Docket Entry No. 16.) According
to Plaintiff, because Defendants failed to timely assert that the Court lacked personal jurisdiction,
they are now subject to personal jurisdiction in this Court and are considered residents of New
York State pursuant to 18 U.S.C. § 1391(c), which makes venue proper in the Eastern District of
New York pursuant to 18 U.S.C. § 1391(b)(1). (Pl. Opp’n 2.) In response, Monarch contends
that Plaintiff conflates the issues of venue and personal jurisdiction and argues that Plaintiff
could have brought this action in a judicial district in which a substantial part of the events
occurred. (Monarch Reply to Pl. Opp’n (“Monarch Reply”) 1–2, Docket Entry No. 24.)
Under 28 U.S.C. § 1391(b)(1), venue is proper in “a judicial district in which any
defendant resides, if all defendants are residents of the State in which the district is located.” 28
U.S.C. § 1391(b)(1). Where the defendant is a corporate entity, it “shall be deemed to
reside . . . in any judicial district in which such defendant is subject to the court’s personal
jurisdiction with respect to the civil action in question.” 28 U.S.C. § 1391(c)(2). “[F]or
purposes of venue,” where a corporate defendant is sued in a state with more than one judicial
district, and in which a corporate defendant “is subject to personal jurisdiction at the time an
action is commenced,” the corporation:
shall be deemed to reside in any district in that State within which
its contacts would be sufficient to subject it to personal jurisdiction
if that district were a separate State, and, if there is no such district,
the corporation shall be deemed to reside in the district within
which it has the most significant contacts.
28 U.S.C. § 1391(d).
A central issue raised by Plaintiff’s argument is whether, for purposes of determining
corporate residency under section 1391, courts consider the existence of personal jurisdiction
over a defendant corporation (1) at the time the action was commenced or (2) at the time venue is
disputed. Implicit in Plaintiff’s argument that Defendants’ purported waiver has established
personal jurisdiction is that the Court assesses personal jurisdiction at the time venue is disputed
rather that at the commencement of the action. As discussed below, based on the language of the
venue statute, the Court concludes that it is required to assess personal jurisdiction over
Defendants at the time Plaintiff commenced this action irrespective of any purported subsequent
The Court assesses personal jurisdiction over Defendants at the
commencement of this action
In 2011, Congress amended 28 U.S.C. § 1391, including the statute’s corporate residency
provisions. See Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No.
112-63, 125 Stat. 758 (Dec. 7, 2011). In particular, the amendments altered the language of
1391(c)(2) concerning personal jurisdiction for purposes of determining corporate residency.
Prior to the 2011 amendments, 1391(c)(2) referred to personal jurisdiction “at the time the action
is commenced.” 28 U.S.C. § 1391(c)(2) (Nov. 2, 2002). After the 2011 amendments, 1391(c)(2)
was amended to refer generally to whether the corporation is “subject to personal jurisdiction
with respect to the civil action in question.” 28 U.S.C. § 1391(c)(2) (Dec. 7, 2011); see 14D
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3811.1 (4th ed.)
(discussing changes to section 1391’s corporate residency provisions). The effect of this change
in the language is unclear. See Wright & Miller, supra, § 3811.1 (“The more problematic point
is whether the linguistic change in focus — from personal jurisdiction ‘at the time the action is
commenced’ to personal jurisdiction ‘with respect to the civil action in question’ — works a
change in the law. The legislative history is unhelpful and there is as yet no meaningful case law
on the issue.”). Critically, despite the changes to the language of section 1391(c)(2) for assessing
personal jurisdiction over a corporate defendant, section 1391(d), which addresses assessing
corporate residency in states with multiple judicial districts, continues to require courts to assess
personal jurisdiction over a corporate defendant “at the time the action is commenced.” 28
U.S.C. § 1391(d) (“For purposes of venue under this chapter, in a State which has more than one
judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at
the time an action is commenced . . . .”); Wright & Miller, supra, § 3811.1 (“[V]exingly, in
assessing whether a corporation is subject to personal jurisdiction, Section 1391(d) continues to
refer to personal jurisdiction ‘at the time an action is commenced.’”).
Before the 2011 amendments, courts took different approaches to determining whether
there was venue based on a corporate defendant’s alleged waiver of personal jurisdiction, with
some courts rejecting any argument that a waiver necessarily established venue. Compare
DSMC, Inc. v. Convera Corp., 273 F. Supp. 2d 14, 19 (D.D.C. 2002) (finding that the court had
personal jurisdiction after a separate assessment of jurisdiction, and rejecting the waiver
argument, noting that the court “does not have venue simply by virtue of this waiver and must
make a separate inquiry into whether personal jurisdiction exists [for purposes of venue]”); and
Wine Markets Int’l, Inc. v. Bass, 939 F. Supp. 178, 180 (E.D.N.Y. 1996) (holding that the
“[c]ourt should assess the situation as it existed when the complaint was filed, irrespective of
subsequent consent or waiver”) with Frederick Goldman, Inc. v. Commemorative Brands, Inc.,
No. 04-CV-1100, 2004 WL 954692, at *1 (S.D.N.Y. May 5, 2004) (finding defendant’s failure
to object to personal jurisdiction despite the plaintiff’s allegations of jurisdiction constituted a
waiver, and made defendant a resident for purposes of 18 U.S.C. § 1391(b)(1)); and Burrell v.
State Farm Fire & Cas. Co., No. 00-CV-5733, 2001 WL 797461, at *4 (S.D.N.Y. July 12, 2001)
(holding that in the absence of the defendants’ arguments that there was no personal jurisdiction,
the court “cannot conclude at this stage of the proceedings that the Southern District of New
York is an improper venue for this case”).
Since the 2011 amendments, at least one court faced with a waiver argument has held that
courts should assess personal jurisdiction at the time the action was commenced. In Rankel v.
Kabateck, No. 12-CV-216, 2013 WL 7161687 (S.D.N.Y. Dec. 9, 2013), appeal dismissed (May
15, 2014), a corporate defendant moved to dismiss the action arguing that venue was improper
under 28 U.S.C. § 1391(b)(1) because the defendant was not a resident of New York State.
Id. at *3–4. The plaintiff argued that because the defendant failed to move to dismiss for lack of
personal jurisdiction, the defendant waived any objection and the court could exercise personal
jurisdiction over the defendant and thus venue was proper. Id. Citing the amended language of
section 1391(d), the court held that it should assess personal jurisdiction at the time the action
was commenced. Id. at *3. Ultimately, the court did not reach the issue of personal jurisdiction
because it was undisputed that one of the defendants was not a New York resident and thus
section 1391(c)(2) was inapplicable as all corporate defendants must be residents of the same
state for purposes of asserting venue pursuant to section 1391(c)(2). Id. at *4.
The Court is persuaded that the correct approach for assessing venue under section 1391,
given the language of section 1391(d), is to determine whether personal jurisdiction over
Defendants existed at the time Plaintiff commenced this action, independent of any purported
subsequent waiver. Assessing personal jurisdiction at the time Plaintiff commenced this action
gives effect to the language of section 1391(d), which explicitly applies to cases where, as here, a
corporate defendant is sued in a state with multiple judicial districts. 28 U.S.C. § 1391(d) (“For
purposes of venue under this chapter, in a State which has more than one judicial district and in
which a defendant that is a corporation is subject to personal jurisdiction at the time an action is
commenced . . . .”); Rankel, 2013 WL 7161687, at *3 (“[T]he existence of venue should be
analyzed as of the time of filing, without regard to whether a [corporate] defendant may waive a
defense based on lack of personal jurisdiction by virtue of its conduct during litigation.” (quoting
Bell v. Classic Auto Grp., Inc., No. 04-CV-0693, 2005 WL 659196, at *5 (S.D.N.Y. Mar. 21,
Accordingly, the Court assesses whether, at the time Plaintiff commenced this action,
Plaintiff established personal jurisdiction over Defendants for purposes of venue.
Plaintiff has not established that the Court may exercise personal
jurisdiction over Defendants
In assessing personal jurisdiction over a defendant, “the plaintiff need persuade the court
only that its factual allegations constitute a prima facie showing of jurisdiction.” Dorchester
Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 85 (2d Cir. 2013) (quoting Ball v. Metallurgie
Hoboken–Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). At the pre-discovery stage, the
plaintiff must make this prima facie showing through “an averment of facts that, if credited by
the trier, would suffice to establish jurisdiction over the defendant.” Id. (quoting Ball, 902 F.3d
at 197); see MacDermid, Inc. v. Deiter, 702 F.3d 725, 727 (2d Cir. 2012). “A prima facie case
[of personal jurisdiction] requires non-conclusory fact-specific allegations or evidence showing
that activity that constitutes the basis of jurisdiction has taken place.” Chirag v. MT Marida
Marguerite Schiffahrts, 604 F. App’x 16, 19 (2d Cir. 2015) (citing Jazini v. Nissan Motor Co.,
Ltd., 148 F.3d 181, 185 (2d Cir. 1998)).
“Determining personal jurisdiction over a foreign defendant in a federal-question case
such as this requires a two-step inquiry.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL,
732 F.3d 161, 168 (2d Cir. 2013). First, the court looks to the law of the forum state to
determine if personal jurisdiction exists under the laws of that state. Id. (citing Best Van Lines,
Inc. v. Walker, 490 F.3d 239, 242 (2d Cir. 2007)). Next, the court determines whether the
exercise of personal jurisdiction over the defendant would comport with the Due Process Clause
of the United States Constitution. Id. (first citing Best Van Lines, 490 F.3d at 242; and then
citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Here, the Court looks to New
York law, which provides for the exercise of general or specific jurisdiction over individuals or
entities. N.Y. C.P.L.R. § 301 (conferring general jurisdiction); id. § 302 (conferring specific
New York general jurisdiction
To establish general jurisdiction over a foreign corporation, “a plaintiff must set forth
facts of a ‘continuous and systematic course of doing business’ in New York that ‘warrant[s] a
finding of [the corporation’s] presence’ in the state.” Universal Trading & Inv. Co. v. Credit
Suisse (Guernsey) Ltd., 560 F. App’x 52, 55 (2d Cir. 2014) (first alteration in original) (quoting
Laufer v. Ostrow, 55 N.Y.2d 305, 309–10 (1982)); Chirag, 604 F. App’x at 19 (“[D]efendants’
activities within the forum must be of a ‘continuous and systematic nature,’ such that the
defendant ‘should reasonably anticipate being haled into court there.’” (internal citations and
second-level quotation marks omitted) (first quoting Helicopteros Nacionales de Colombia S.A.
v. Hall, 466 U.S. 408, 414 (1984); and then quoting Burger King Corp. v. Rudzewicz, 471 U.S.
462, 474 (1985))). Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 225 (2d Cir.
2014) (“[G]eneral jurisdiction exists only when a corporation’s contacts with a state are so
continuous and systematic as to render it essentially at home in the forum State.” (citations and
internal quotation marks omitted)).
Here, Plaintiff’s sole allegation as to Defendants’ conduct within New York State is that
“Defendants, and each of them, regularly conduct business in this judicial district.” (Compl.
¶ 7.) This conclusory assertion is insufficient to establish general personal jurisdiction over
Defendants. See Enderby v. Secrets Maroma Beach Riviera Cancun, No. 10-CV-1015, 2011 WL
6010224, at *10 (E.D.N.Y. Dec. 1, 2011) (“[C]onclusory non-fact[-]specific jurisdictional
allegations . . . are insufficient to establish even a prima facie showing of personal jurisdiction
under § 301.” (third alteration in original)); DirecTV Latin Am., LLC v. Park 610, LLC, 691 F.
Supp. 2d 405, 417 (S.D.N.Y. 2010) (“[C]onclusory allegations are not enough to establish
personal jurisdiction.”). This single allegation provides no facts from which the Court could
determine the nature of each Defendant’s contacts with New York State, or that they are “‘so
continuous and systematic’ as to render [each Defendant] essentially at home in the forum
State.” Sonera, 750 F.3d at 225.
New York specific jurisdiction
While general jurisdiction relates to a party’s contacts with the forum, specific
jurisdiction is “conduct-linked jurisdiction,” and “depends on an affiliation between the forum
and the underlying controversy, principally, activity or an occurrence that takes place in the
forum state and is therefore subject to the State’s regulation.” Id. (alteration in original). This
specific jurisdiction exists pursuant to New York’s long-arm statute, which provides, in pertinent
As to a cause of action arising from any of the acts enumerated in
this section, a court may exercise personal jurisdiction over any
non-domiciliary . . . who
agent . . . transacts any business within the state or contracts
anywhere to supply goods or services in the state . . . .
N.Y. C.P.L.R. § 302(a)(1). 4 This provision has two prongs: (1) “[t]he defendant must have
transacted business within the state,” either itself or through an agent, and (2) “the claim asserted
must arise from that business activity.” Licci, 732 F.3d at 168 (quoting Solé Resort, S.A. de C.V.
v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d Cir. 2006)); Best Van Lines, 490 F.3d at
246–47; Moore v. Publicis Group SA, No. 11-CV-1279, 2012 WL 6082454, at *7–8 (S.D.N.Y.
2012) (citing Solé, 450 F.3d at 103) (finding that plaintiff presented sufficient evidence to
support exercise of jurisdiction, pursuant to N.Y. C.P.L.R. § 302(a)(1), over foreign parent
corporation of plaintiff’s direct employer in employment discrimination action).
“When analyzing jurisdiction under the transacts business clause, courts examine ‘the
totality of the defendant’s activities within the forum’ in order to determine if the defendant’s
‘transacted business’ can be considered purposeful.” Levans v. Delta Airlines, Inc., 988 F. Supp.
2d 330, 335 (E.D.N.Y. 2013) (quoting Sterling Nat’l Bank & Trust Co. of N.Y. v. Fidelity Mortg.
Investors, 510 F.2d 870, 873 (2d Cir. 1975)). However, a plaintiff’s conclusory allegations of
transacting business are insufficient. See Chirag, 604 F. App’x at 19 (“A prima facie case
requires non-conclusory fact-specific allegations or evidence showing that activity that
constitutes the basis of jurisdiction has taken place.”); Doe v. Del. State Police, 939 F. Supp. 2d
The other provisions of New York’s long-arm statute are inapplicable here, as there are
no allegations that Defendants committed a tortious act that (1) occurred within New York State
(2) occurred outside New York State but caused injury to a person or property within the State or
(4) owns, uses or possess real property in New York State. N.Y. C.P.L.R. § 301(a)(2)–(4).
313, 332 (S.D.N.Y. 2013) (“[C]ourts have regularly held that a plaintiff asserting jurisdiction
must tender specific allegations about the defendant’s contacts with the forum state.” (collecting
cases)); Virgin Enters. Ltd. v. Virgin Eyes LAC, No. 08-CV-8564, 2009 WL 3241529, at *6
(S.D.N.Y. Sept. 30, 2009) (“Plaintiff’s conclusory allegation that ‘defendants regularly solicit
business in the State of New York by means of a deceptively named, VIRGIN EYES ‘pay-perclick’ online retailing and advertising business that falsely suggests or implies a connection,
association, or affiliation with VEL,’ is insufficient to confer jurisdiction.”); Maggi v. Women’s
Coll. Hosp., No. 03-CV-0768, 2007 WL 841765, at *2 (N.D.N.Y. Mar. 19, 2007) (“Plaintiff’s
conclusory statement that the hospital ‘contracts business within New York’ is insufficient to
find that the hospital transacts business in New York.”).
Here, as stated above, Plaintiff’s only allegation as to Defendants’ contact with New
York State is that “Defendants, and each of them, regularly conduct business in this judicial
district.” (Compl. ¶ 7.) Aside from this conclusory assertion, Plaintiff alleges no facts as to the
nature of Defendants’ purported business within New York. This is insufficient to plausibly
allege personal jurisdiction over Defendants under New York’s long-arm statute. See Doe, 939
F. Supp. 2d at 332 (“[C]ourts have regularly held that a plaintiff asserting jurisdiction must
tender specific allegations about the defendant’s contacts with the forum state.” (collecting
cases)); Virgin Enters. Ltd., 2009 WL 3241529, at *6.
Because the Court has determined that it lacks both general and specific personal
jurisdiction over Defendants, venue is not proper pursuant to 28 U.S.C. § 1391(b)(1).
Transfer under 28 U.S.C. § 1406(a) is not warranted
Under 28 U.S.C. § 1406(a), where an action is subject to dismissal as improperly venued,
the Court must decide whether to dismiss the action or, if it is in the interest of justice, to transfer
the action to a venue “in which it could have been brought.” 28 U.S.C. § 1406(a). The decision
“whether to dismiss or transfer a case ‘lies within the sound discretion of the district court.’”
Blakely v. Lew, 607 F. App’x 15, 18 (2d Cir. 2015) (quoting Minnette v. Time Warner, 997 F.2d
1023, 1026 (2d Cir. 1993)). Courts have declined to transfer cases where, among other reasons,
transfer would reward the plaintiff’s failure to exercise diligence in choosing a forum or the
plaintiff’s knowing choice of an improper forum. See Spar, Inc. v. Info. Res., Inc., 956 F.2d 392,
394 (2d Cir. 1992) (affirming denial of transfer under § 1406(a) where “allowing a
transfer . . . would reward plaintiffs for their lack of diligence in choosing a proper forum and
thus would not be in the interest of justice”); Japan Press Serv., Inc. v. Japan Press Serv., Inc.,
No. 11-CV-5875, 2013 WL 80181, at *15 (E.D.N.Y. Jan. 2, 2013) (finding transfer would not be
in the interest of justice where “plaintiff should have known that New York was not a proper
forum within which to bring an action against a Hawaii corporation which prints, publishes and
distributes a newspaper only in Hawaii”); Wolf v. AVX Corp., No. 08-CV-934, 2008 WL
2695092, at *3 (S.D.N.Y. June 27, 2008) (“[W]ithout a compelling reason to preserve the action
or a clear venue to which to transfer it, this Court dismisses the action.”); World Skating Fed’n v.
Int’l Skating Union, 357 F. Supp. 2d 661, 667 (S.D.N.Y. 2005) (“Section 1406 should not be a
panacea for lawyers who bring suits in jurisdictions where they know or should know that they
do not belong.”).
The Court finds that transferring venue under section 1406(a) is not in the interests of
justice and dismisses the action. Reviewing the Complaint’s single page of conclusory
allegations reveals that Plaintiff made no effort to apply the straightforward venue provisions or,
at a minimum, plead facts upon which this Court, or any other court, could determine whether
venue was proper. See World Skating Fed’n, 357 F. Supp. 2d at 666 (stating that it was unclear
if either of the districts proposed by Plaintiff could exercise personal jurisdiction over the action
and because “such a determination is best left to the courts in those jurisdictions, this Court will
not transfer this action”). Indeed, Plaintiff’s arguments in opposition to Defendants’ motions
concede that venue was not proper at the initiation of this litigation, arguing only that Defendants
waived personal jurisdiction after she initiated this action and thus rendered venue proper. (Pl.
Opp’n 2.) Apart from the bare allegation that Defendants’ transact business in this District, the
only connection to New York State appears to be counsel’s Manhattan law office. To grant a
transfer under these circumstances “would reward [P]laintiff for [a] lack of diligence in
choosing a proper forum and thus would not be in the interest of justice.” Spar, 956 F.2d at 394.
The Court acknowledges the need to avoid causing Plaintiff undue prejudice in
dismissing rather than transferring the case. Plaintiff’s FDCPA claim is subject to a one-year
statute of limitations. See Benzemann v. Citibank N.A., 806 F.3d 98, 99 (2d Cir. 2015)
(“[P]laintiffs must file suit ‘within one year from the date on which the violation occurs.’”
(quoting 15 U.S.C. § 1692k(d))). Plaintiff’s FCRA claim “must be brought ‘not later than the
earlier of — (1) 2 years after the date of discovery by the plaintiff of the violation that is the
basis for such liability; or (2) 5 years after the date on which the violation that is the basis for
such liability occurs.’” Trans Union LLC v. Lindor, 393 F. App’x 786, 788 (2d Cir. 2010)
(quoting 15 U.S.C. § 1681p). However, Plaintiff’s sparse allegations in the Complaint preclude
any detailed assessment of potential statute of limitations concerns as it fails to identify any time
period in which the underlying conduct occurred. In addition, in opposing Defendants’ motions
to dismiss, Plaintiff does not assert that any prejudice would result from dismissal rather than
Accordingly, the Court declines to exercise its discretion to transfer this action and
dismisses the action without prejudice. 5
For the foregoing reasons, the Court grants Defendants’ motions to dismiss this action as
improperly venued and dismisses Plaintiff’s action without prejudice.
MARGO K. BRODIE
United States District Judge
Dated: January 22, 2016
Brooklyn, New York
In light of this dismissal, the Court also denies Plaintiff’s motion for sanctions as moot.
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