McQueen v. Huddleston and Huddleston

Filing 11

DECISION AND ORDER granting Plaintiff's 10 First MOTION to Amend/Correct Complaint. Plaintiff shall file and serve a clean copy of amended complaint within 30 days, and defendant shall respond in accordance with the requirements of the Federal Rules of Civil Procedure. Defendant's motion to dismiss is denied. Signed by Hon. John T. Curtin on 10/2/2013. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DONALD McQUEEN,
Plaintiff,
-v-

13-CV-302-JTC

HUDDLESTON AND HUDDLESTON,
Defendant.

INTRODUCTION
Plaintiff, Donald McQueen, filed this action on March 25, 2013, against Huddleston
and Huddleston (“H & H”), “an attorney’s office organized and existing under the laws of
the State of Kentucky” (Item 1, ¶ 5), alleging various violations of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq. On April 29, 2013, attorney Lee
Huddleston filed a document entitled “Pro Se Limited Entry of Appearance and Motion to
Dismiss,” seeking dismissal of the complaint on various grounds including improper venue,
lack of personal jurisdiction, insufficient process, insufficient service, and failure to join a
necessary party. Item 6. Plaintiff has filed an opposition to the motion to dismiss (Item 9),
along with a motion for leave to amend the complaint in order to name the proper
defendant (Item 10).
For the reasons that follow, plaintiff’s motion to amend is granted, and defendant’s
motion to dismiss is denied.

BACKGROUND
As alleged in the complaint, plaintiff is a resident of Orleans County, which is located
within the Western District of New York. He claims that, following his default on a debt to
CitiFinancial, an entity named “CSGA, LLC” acquired the debt and obtained a judgment,
which plaintiff claims was satisfied in March 2006 by “arrangements with CSGA ….” Item
1, ¶¶ 12, 13. He further alleges that, in early 2012, H & H “began contacting the Plaintiff
to collect on the previously satisfied subject debt …” (id. at ¶ 14), prompting plaintiff to file
a consumer complaint with the New York State Attorney General’s Office in February 2012.
H & H filed a response to the consumer complaint, dated March 22, 2012, stating that it
had closed the collection account upon learning that the debt had been paid. Id. at ¶¶ 1516. Plaintiff alleges that, contrary to this statement, H & H continued to contact him
demanding payment, including a March 27, 2012, voicemail indicating that there was a
lawsuit still pending against plaintiff.

Id. at ¶¶ 17-23. Plaintiff seeks damages and

attorney’s fees for violations of several provisions of the FDCPA, including § 1692e
(prohibiting use of false, deceptive, or misleading representation or means in connection
with collection of a debt); § 1692f (prohibiting use of unfair or unconscionable means to
collect or attempt to collect a debt); and § 1692d (prohibiting harassment, oppression, or
abuse in connection with collection of a debt). See id. at ¶ 25.
In lieu of answering the complaint, Mr. Huddleston filed his pro se appearance “for
the limited purposes of moving the Court to dismiss the complaint.” Item 6, p. 1. He
asserts that he is an attorney practicing in Bowling Green, Kentucky, under the name of
Huddleston & Huddleston, Attorneys at Law PLLC, and that he is not aware of any entity

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named “Huddleston and Huddleston.” He further asserts that neither he nor his law firm
has ever transacted any business or maintained any “minimal contacts” in New York, and
that all of the events set forth in the complaint took place in Kentucky. Mr. Huddleston
seeks dismissal of the complaint for improper venue, or in the alternative, transfer of venue
to the United States District Court for the Western District of Kentucky, Bowling Green
Division. Id. at 2-3. He also contends that, although he received a summons addressed
to “Huddleston and Huddleston,” he did not receive a summons addressed to “Lee
Huddleston” or “Huddleston & Huddleston, Attorneys at Law PLLC,” and that the case
should therefore be dismissed for lack of personal jurisdiction, insufficient process, and
insufficient service of process. Id. at 3.
Finally, Mr. Huddleston asserts that plaintiff had two debts with CitiFinancial–one
being handled by his law office in Kentucky, and the other being handled by Bronson &
Migliaccio LLP (the “Bronson firm”) in Buffalo, New York–and that plaintiff has confused
the collection efforts of the Huddleston firm with those of the Bronson firm. Mr. Huddleston
states that his firm closed its file out of an abundance of caution when plaintiff produced
documentation showing that one of the debts had been paid, and that it was someone from
the Bronson firm who left the March 27, 2012 message on plaintiff’s voicemail, looking for
payment on the other CitiFinancial debt. Mr. Huddleston therefore seeks dismissal of the
complaint pursuant to Fed. R. Civ. P. 19(a)(1) for failure to join the Bronson firm as a party
whose presence is required in order to accord complete relief. Id. at 4.
In response to the motion, plaintiff contends that venue of this action is properly laid
because a substantial part of the events giving rise to the FDCPA claim–i.e., receipt of a
letter and a telephone call from H & H seeking collection of a debt–occurred in the Western
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District of New York. Plaintiff also contends that the Bronson firm is not a necessary party
to this action because, taking the facts pleaded as true and construing them in the light
most favorable to plaintiff, the complaint states a claim for relief under the FDCPA based
on the debt collection efforts of H&H, not the conduct of Bronson or some other law firm.
Plaintiff also seeks leave to amend the complaint to name Lee Huddleston, d/b/a
Huddleston and Huddleston Attorneys at Law PLLC, as the proper defendant, which
plaintiff asserts will cure any defects regarding service of process or personal jurisdiction.
For the following reasons, plaintiff’s motion to amend is granted, and Mr.
Huddleston’s motion to dismiss is denied.

DISCUSSION
I.

Motion to Amend
Rule 15(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that

a party may amend its pleading by leave of the court and that the court “should freely give
leave when justice so requires.” Fed. R. Civ. P. 15(a). In recognition of this liberal
standard, courts freely permit amendments to cure such pleading deficiencies as the
improper naming of defendants previously served. See, e.g., Datskow v. Teledyne, Inc.,
Cont'l Prods. Div., 899 F.2d 1298, 1301 (2d Cir. 1990) (reversing denial of motion to
amend to re-designate proper defendant; misnomer may be corrected when “plaintiffs did
not select the wrong defendant but committed the lesser sin of mislabeling the right
defendant”); Vadenais v. Christina, 325 F.2d 157, 158 (2d Cir. 1963) (per curiam) (leave
to amend should be granted to correct misnaming of defendant); Circuito Cerrado Inc. v.
La Camisa Negra Restaurant & Bar Corp., 2011 WL 1131113, at *2 (E.D.N.Y. Mar. 7,
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2011) (“Where there is notice and no discernible prejudice, amendment has been allowed
to correct the name of a sued party while a suit is pending or even after judgment.”) (citing
cases).
In this case, the materials submitted in connection with the pending motions indicate
to the court that plaintiff does not seek leave to amend the complaint in order to add a new
defendant who had no prior notice of the lawsuit, but rather as an attempt to properly name
the debt collector against whom this FDCPA action is being brought and upon whom
process has been served. For example, in support of his pro se motion to dismiss, Mr.
Huddleston has attached copies of plaintiff’s consumer complaint which was filed with the
State Attorney General in February 2012 against the Bronson firm, and the “Response
Form” which Mr. Huddleston signed identifying “Huddleston & Huddleston” as the legal
name of his company, and himself as the owner (see Item 7, p. 5), providing a reasonable
basis for plaintiff to name “Huddleston and Huddleston” as the defendant in this action.
Moreover, Mr. Huddleston does not dispute that he received notice of the suit by way of
service of the summons addressed to “Huddleston & Huddleston” (see Item 6, p. 3), and
he has not objected or otherwise responded to plaintiff’s motion for leave to amend in order
to cure the defect, despite ample opportunity to do so (see Item 8).
For these reasons, the court will grant plaintiff’s motion for leave to amend the
complaint in order to cure this deficiency by naming Lee Huddleston, d/b/a Huddleston and
Huddleston Attorneys at Law PLLC, as the proper defendant.1

1

Because the court’s grant of leave to amend is intended to give plaintiff the opportunity to name,
serve, and obtain personal jurisdiction over the proper defendant, Mr. Huddleston’s pro se motion to
dismiss for lack of personal jurisdiction, insufficient process, and insufficient service of process is denied
without prejudice.

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II.

Motion to Dismiss
A.

Venue

The statute governing the venue of civil actions brought in federal district court
provides:
Venue in general.--A civil action may be brought in-(1) a judicial district in which any defendant resides, if all defendants are
residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of property that is the
subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as
provided in this section, any judicial district in which any defendant is subject
to the court's personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b).
In Bates v. C & S Adjusters, Inc., 980 F.2d 865 (2d Cir. 1992), the Second Circuit
considered whether, in an action brought under the FDCPA, venue was proper in the
Western District of New York under § 1392(b)(2) as the “district in which a substantial part
of the events or omissions giving rise to the claim occurred,” when the only event that
occurred there was the plaintiff’s receipt of the debt collector’s demand for payment. The
circuit court noted that:
In adopting [the FDCPA], Congress was concerned about the harmful effect
of abusive debt practices on consumers. See 15 U.S.C. § 1692(a) (“Abusive
debt collection practices contribute to the number of personal bankruptcies,
to marital instability, to the loss of jobs, and to invasions of individual
privacy.”). This harm does not occur until receipt of the collection notice.
Indeed, if the notice were lost in the mail, it is unlikely that a violation of the
Act would have occurred. Moreover, a debt collection agency sends its
dunning letters so that they will be received. Forwarding such letters to the
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district to which a debtor has moved is an important step in the collection
process. If the bill collector prefers not to be challenged for its collection
practices outside the district of a debtor's original residence, the envelope
can be marked “do not forward.” We conclude that receipt of a collection
notice is a substantial part of the events giving rise to a claim under the Fair
Debt Collection Practices Act.
Bates, 980 F.2d at 868.
There can be no dispute in this case that the debt collector contacted plaintiff by
letter and telephone call at plaintiff’s residence in Orleans County. In light of the controlling
precedent of Bates, the venue of this FDCPA action was therefore properly laid in the
Western District of New York, where a substantial part of the events giving rise to the
action occurred. Accordingly, Mr. Huddleston’s motion to dismiss the action for improper
venue is denied.
As an alternative to dismissal, Mr. Huddleston seeks transfer of venue to the
Western District of Kentucky. 28 U.S.C. § 1404(a) provides: “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 or to any district or
division to which all parties have consented.” The court’s determination as to whether to
transfer a properly venued action to another district is guided by a two-part inquiry.
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. Courts weigh a number of non-dispositive
factors in making that determination, including: (1) 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 compel attendance of unwilling witnesses; and (8)
the forum's familiarity with governing law.
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Sebrow v. Zucker, Goldberg & Ackerman, LLC, 2012 WL 911552, at *3 (E.D.N.Y. Mar. 16,
2012) (citing Tobey v. Nat'l Action Fin. Servs., Inc., 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), and the party
moving for a transfer of venue has the burden “to demonstrate, by a clear and convincing
showing, that transfer should be made.” Hill v. Golden Corral Cor., 1999 WL 342251, at
*2 (E.D.N.Y. May 21, 1999). “Indeed, our legal system has traditionally deferred to the
plaintiff's choice of forum, and ‘unless the balance is strongly in favor of the defendant, the
plaintiff's choice of forum should rarely be disturbed.’ ” Gross v. British Broad. Corp., 386
F.3d 224, 230 (2d Cir. 2004) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).
Based on the information presently before the court, Mr. Huddleston has not met
his burden as movant to clearly and convincingly demonstrate that the convenience of the
parties and witnesses, and the interest of justice, weigh strongly in favor of disturbing
plaintiff’s proper choice of forum in this FDCPA case. Accordingly, the request for transfer
of venue must be denied.

B.

Failure to Join a Required Party

Mr. Huddleston also moves to dismiss the complaint for failure to name the Bronson
firm as a “required party” under Rule 19, which provides that:
(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of process and
whose joinder will not deprive the court of subject-matter jurisdiction must be
joined as a party if:
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(A) in that person's absence, the court cannot accord complete relief among
existing parties; or
(B) that person claims an interest relating to the subject of the action and is
so situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to
protect the interest; or
(ii) leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations
because of the interest.
Fed. R. Civ. P. 19(a)(1).
Once again, the burden of demonstrating that a party is a “required party” under this
Rule rests with the moving party. Greenwich Life Settlements, Inc. v. ViaSource Funding
Grp., LLC, 742 F. Supp. 2d 446, 455 (S.D.N.Y. 2010); Mattera v. Clear Channel
Commc’ns, Inc., 239 F.R.D. 70, 74 (S.D.N.Y. 2006). If a party does not qualify as
“required” under Rule 19(a)(1)(A), then the court need not decide whether its absence
warrants dismissal under Rule 19(a)(1)(B). See Viacom Intern., Inc. v. Kearney, 212 F.3d
721, 724 (2d Cir. 2000) (discussing two-step analysis under Rule 19); Associated Dry
Goods Corp. v. Towers Fin. Corp., 920 F.2d 1121, 1123 (2d Cir. 1990). In addition,
because of the fact-based analysis usually required to determine the effects of non-joinder,
district courts have broad discretion in applying Rule 19, and matters outside the pleadings
may be considered. See, e.g., Rahman v. Shiv Darshan, Inc., 2013 WL 654189, at *5
(E.D.N.Y. Feb. 22, 2013); Circle Industries v. City Federal Savings Bank, 749 F. Supp. 447,
457, n. 2 (E.D.N.Y. 1990).
Mr. Huddleston contends that the Bronson firm must be joined as a party for fair and
complete adjudication of the dispute in this action since, as demonstrated by the
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administrative pleadings filed with the Attorney General, plaintiff has confused the efforts
of the Bronson and Huddleston firms to collect on two separate debts plaintiff incurred with
CitiFinancial. See Item 6, p. 4. For his part, plaintiff flatly denies the existence of two
separate debts. See Item 9, pp. 3-4. In this court’s view, these conflicting contentions
raise genuine issues of fact which the court is unable to resolve at this stage of the
pleadings, prior to any discovery and in the absence of a fully supported motion for
summary judgment.
As such, the court finds that Mr. Huddleston has failed to meet his burden under
Rule 19(a)(1)(A) to demonstrate that complete relief cannot be accorded among existing
parties in the absence of the Bronson firm, and his motion to dismiss for failure to join a
required party must therefore be denied.

CONCLUSION
For the foregoing reasons, plaintiff’s motion for leave to amend the complaint in
order to name the proper defendant is granted. Plaintiff shall file and serve a clean copy
of the amended complaint within thirty days from the date of entry of this order, and
defendant shall plead in response, in accordance with the requirements of the Federal
Rules of Civil Procedure.
Mr. Huddleston’s pro se motion to dismiss the action/transfer venue is denied.
So ordered.
\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
Dated:

October 2, 2013

p:\pending\2013\13-302.oct2.2013

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