Case: 3:13-cv-00524-wmc Document #: 10 Filed: 10/10/13 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN JESSE FABIO, Plaintiff, vs. DIVERSIFIED CONSULTANT, INC., A Florida Corporation, d/b/a Diversified Credit, Inc., Defendant.

CIVIL ACTION NO. 3:13-CV-00524

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS FOR LACK OF IN PERSONAM JURISDICTION AND IMPROPER VENUE PURSUANT TO FED.R.CIV.P. 12(b)(2) AND (3) OR IN THE ALTERNATIVE, MOTION TO TRANSFER AND Defendant moves for an order dismissing this action because this Court lacks in personam jurisdiction over Defendant and venue is improper under 28 U.S.C. 1391. In the alternative, pursuant to 28 U.S.C. 1406(a), Defendant requests the Court to transfer this case to the United States District Court for the Middle District of Florida, Jacksonville Division where Defendant maintains its office, where its witnesses and/or files are located and where it originated its collection efforts giving rise to the claims asserted in Plaintiffs complaint or alternatively, the United States District Court for the District of Minnesota St. Paul Division where Plaintiff resides.

DEFENDANTS MOTION TO DISMISS -- Page 1 of 12

Case: 3:13-cv-00524-wmc Document #: 10 Filed: 10/10/13 Page 2 of 12

Introduction Plaintiffs instituted this lawsuit against Defendant alleging Defendant violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq (FDCPA), Telephone Consumer Practices Act, 47 U.S.C. 227 et seq (TCPA), Invasion of Privacy, and the Wisconsin Consumer Act in various communications with Plaintiff. Despite the fact that Plaintiff is a resident of the State of Minnesota1, and Defendant is a corporation organized and existing under the laws of the State of Florida, Plaintiff instituted the case at bar in this Court. Plaintiff claims that Defendant telephoned Plaintiff utilizing the following telephone numbers: (608) 466-4286; (608) 466-4778 and; (608) 466-44612. However, even if true, such act does not convey jurisdiction upon this Court. There is no jurisdictional tie to this Court. As such, the Court should dismiss Plaintiffs case or in the alternative, transfer the case to either the United States District Court for the Middle District of Florida, Jacksonville Division or the United States District Court for the District of Minnesota St. Paul Division. Background Facts Plaintiff is a resident of the State of Minnesota. At some undetermined time, Plaintiff incurred and defaulted on an alleged consumer debt. Plaintiffs debt was assigned to Defendant for lawful collection.3 Defendant maintains only two offices with its principal place of business in Jacksonville, Florida and a satellite office in Portland, Oregon.4
1 2

Plaintiffs Complaint at paragraph 7. Plaintiffs Complaint at paragraph 14. 3 Pye Declaration 4 Id.

DEFENDANTS MOTION TO DISMISS -- Page 2 of 12

Case: 3:13-cv-00524-wmc Document #: 10 Filed: 10/10/13 Page 3 of 12

Although Plaintiff does not assert any alleged offensive conduct occurred in the Western District of Wisconsin and sets forth no other basis for his choice of forum in the Western District of Wisconsin, he nonetheless instituted his case in this district. There is no basis for in personam jurisdiction over Defendant or for venue in the Western District of Wisconsin. As such,

dismissal of Plaintiffs case, or in the alternative, transfer to a proper federal court is warranted. Plaintiff alleged Defendant committed various violations under the FDCPA, TCPA and a Wisconsin state statute and that he claims to have suffered non-economic damages. Plaintiff seeks to impose liability upon Defendant for claims brought under the FDCPA based upon alleged conduct that does not involve the citizens or the laws of the State of Wisconsin, is not alleged to have occurred in the State of Wisconsin and for which the State of Wisconsin has no compelling or legitimate interest. Plaintiffs case should be dismissed for lack of personal jurisdiction or in the alternative, under 28 U.S.C. 1406(a), the case should be transferred to the United States District Court for the Middle District of Florida, Jacksonville Division or the United States District Court for the District of Minnesota. Argument and Authorities The Court shall dismiss a complaint when it is found there is no in personam jurisdiction over a defendant. Fed.R.Civ.P. 12(b)(2). In determining whether there is in fact, subject matter jurisdiction, the Court should look beyond the complaint and the pleadings to evidence that calls the courts jurisdiction into doubt. Bastien v. AT&T Wireless Services, Inc., 205 F.3d 983, 990 (7th Cir. 2000). In fact, courts have

DEFENDANTS MOTION TO DISMISS -- Page 3 of 12

Case: 3:13-cv-00524-wmc Document #: 10 Filed: 10/10/13 Page 4 of 12

an independent obligation to ensure that jurisdiction exists. Camico Mutual Ins. Co. v. Citizens Bank, 474 F.3d 989, 992 (7th Cir. 2007) Plaintiff has the burden of proof to establish the existence of personal jurisdiction and by a preponderance of the evidence. Meridian Security Ins Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006). If Plaintiff fails to establish in personam jurisdiction, the Court must dismiss the complaint. 28 U.S.C. 1391 provides that a lawsuit in which jurisdiction is not alleged to be founded solely on diversity may be brought only in: 1. A judicial district where any defendant resides, if all defendants reside in the same

state; [Defendant does not reside in Wisconsin] 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; [The alleged offending events purportedly occurred in the State of Minnesota] 3. A judicial district in which any defendant may be found, if there is no district in

which the action may otherwise be brought. [Defendant may be found in the Middle District of Florida] This case must be dismissed or alternatively transferred and in the absence of such, Defendants constitutional due process rights would be denied. Plaintiff must satisfy the Wisconsin long arm statute and due process concerns. A federal court has personal jurisdiction over a non-consenting, nonresident defendant to the extent authorized by the law of the state in which that court sits. Giotis v. Apollo of the Ozarks, Inc., 800 F.2d 660, 664 (7th Cir.1986). This rule applies in diversity and federal question

DEFENDANTS MOTION TO DISMISS -- Page 4 of 12

Case: 3:13-cv-00524-wmc Document #: 10 Filed: 10/10/13 Page 5 of 12

cases, unless the federal statute at issue permits nationwide service or the defendant is not subject to personal jurisdiction in any state in the United States. Fed.R.Civ.P. 4(k); Janmark, Inc. v. Reidy, 132 F.3d 1200, 1201-02 (7th Cir.1997); see also Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002). Neither of the exceptions apply to this case. The FDCPA does not permit nationwide service and Defendant is subject to personal jurisdiction in Jacksonville, Florida. Under Wisconsin law, determining whether personal jurisdiction may be exercised requires a two-step inquiry. First, the court must determine whether defendants are subject to jurisdiction under Wisconsin's long-arm statute, Wis. Stat. 801.05. Kopke v. A. Hartrodt, S.R.L., 2001 WI 99, 8, 245 Wis. 2d 396, 629 N.W.2d 662. Second, if the statutory requirements are satisfied, the court must then decide whether the exercise of jurisdiction comports with the requirements of due process. Id. Personal jurisdiction may be exercised only if both requirements are met: the statute must authorize the exercise of jurisdiction and the exercise of jurisdiction must not offend due process. See also, Logan Productions, Inc. v. Optibase, Inc., 103 F.3d 49, 52 (7th Cir.1996). Presumably, Plaintiff would claim that Defendants alleged conduct falls under Wis. Stat. 801.05(4), the local injury; foreign act provision of Wisconsins long arm statute. That section states in material part: (4) LOCAL INJURY; FOREIGN ACT. In any action claiming injury to person or property within this state arising out of an act or omission outside of this state by defendant, provided in addition that at the time of the injury, either: (a) Solicitation or service activities were carried on within this state by or on behalf of the defendant; or

DEFENDANTS MOTION TO DISMISS -- Page 5 of 12

Case: 3:13-cv-00524-wmc Document #: 10 Filed: 10/10/13 Page 6 of 12

(b) Products, materials or things processed, serviced, or manufactured by the defendant were used or consumed within this state in the ordinary course of trade. Thus, for personal jurisdiction to exist under this section of the statute, the plaintiff must first show an injury to person or property within the State arising out of an act or omission by the defendant outside of the state. This section applies to tortious injuries and is not applicable to losses resulting from an alleged breach of contract. Nagel v. Crain Cutter Co., 50 Wis.2d 638, 643, 184 N.W.2d 876, 878 (1971). Plaintiff resides in the State of Minnesota. His alleged injuries occurred in the State of Minnesota. As such, Plaintiff cannot satisfy his burden under the Wisconsin long arm statute and the case at bar should be dismissed or in the alternative, transferred to the Middle District of Florida or the District of Minnesota. Further, even assuming arguendo, Plaintiff could satisfy his first burden, he cannot show that jurisdiction over Defendant does not violate Defendants due process rights. Due process requires that a nonresident defendant have "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). The contacts between the defendant and the forum state may not be "random, isolated, or fortuitous." Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). Instead, "the sufficiency of the contacts is measured by the defendant's purposeful acts." NUCOR Corp. v. Aceros Y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572, 580 (7th Cir. 1994).

DEFENDANTS MOTION TO DISMISS -- Page 6 of 12

Case: 3:13-cv-00524-wmc Document #: 10 Filed: 10/10/13 Page 7 of 12

The minimum contacts with the forum state must be the result of the defendant's purposefully availing itself of the privilege of conducting business in the forum state, thereby invoking the protections and benefits of the forum state's law. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); International Medical Group, Inc. v. American Arbitration Ass'n, Inc., 312 F.3d 833, 846 (7th Cir.2002). The minimum contacts requirement serves two objectives: "[i]t protects against the burdens of litigation in a distant or inconvenient forum" unless the defendant's contacts make it just to force him or her to defend there, and "it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980 Depending on the nature of the contacts, a court may exercise general or specific jurisdiction. When the defendant's contacts with the state are sufficiently continuous, systematic and general, the court may exercise jurisdiction over the defendant in any suit based on any controversy. International Medical Group, 312 F.3d at 846. When a defendant's contacts with the state are more limited, but are related to or give rise to the specific controversy in issue, a court may exercise specific jurisdiction over the defendant with respect to that controversy. Logan Productions, 103 F.3d at 52. Because the implications are far greater, the constitutional standard for general jurisdiction is considerably more stringent than the standard for specific jurisdiction. Purdue Research Foundation, 338 F.3d at 787. Often phrased as a limitation on the inherent power of the court, personal jurisdiction actually represents a manifestation of individual liberties protected by the Fifth and Fourteenth Amendments. Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 72

DEFENDANTS MOTION TO DISMISS -- Page 7 of 12

Case: 3:13-cv-00524-wmc Document #: 10 Filed: 10/10/13 Page 8 of 12

L. Ed. 2d 492, 102 S. Ct. 2099 (1982). The Due Process Clause guarantees individuals that they will be required to appear in a court only if they have voluntarily associated themselves with that tribunal in some fashion. Id.; Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985). A court that shares no relationship with a person and yet attempts to impose a judgment upon him or her acts in violation of the person's constitutional rights to due process. Bauxites, 456 U.S. at 702. Plaintiff relies in part upon 15 U.S.C. 1692k(d) which provides that an FDCPA claim may be brought in any court of competent jurisdiction. This jurisdictional provision does not obviate the need for in personam jurisdiction and proper venue. Due Process considerations must still be determined by the Court in cases in which jurisdiction is based upon a federal question. In this case, subjecting Defendant, a non-resident of the State of Wisconsin to the jurisdiction of the Western District of Wisconsin and to claims brought by a citizen of the State of Minnesota offends the traditional notions of fair play and substantial justice. Plaintiff did not set forth the location where any of the communications from Defendant are alleged to have been received, but presumably, this occurred in the State of Minnesota. Plaintiff also admits that Defendants place of business is in Jacksonville, Florida. Plaintiffs Complaint on its face fails to state an adequate basis for in personam jurisdiction over Defendant. Plaintiffs dispute with Defendant does not involve citizens, or the laws, or the public policy of the State of Wisconsin. Plaintiffs attempt to involve this Court in the dispute at issue should be denied.

DEFENDANTS MOTION TO DISMISS -- Page 8 of 12

Case: 3:13-cv-00524-wmc Document #: 10 Filed: 10/10/13 Page 9 of 12

A nonresident corporation's contacts with the forum that are unrelated to the litigation must be substantial in order to warrant the exercise of personal jurisdiction under Rule 4(k)(2). Associated Transport Line, Inc. v. Productos Fitosanitarios Proficol El Carmen, S.A., 197 F.3d 1070, 1075 (11th Cir.1999), The casual presence of a corporate agent in the forum is not enough to subject the corporation to suit where the cause of action is unrelated to the agent's activities. International Shoe, 326 U.S. at 317, 66 S. Ct. 154. Similarly, conducting billing and collection activity within the forum state is not sufficient to assert general jurisdiction over a defendant. Mercantile Capital, LP v. Fed. Transtel, Inc., 193 F.Supp.2d 1243, 1251 (N.D. Ala. 2002). (emphasis added) Due process requires that Defendant be permitted to tailor its compliance and collection procedures based on the laws of the jurisdictions in which it conducts relevant compliance and collection procedures, in this case, Florida. To permit this matter to proceed in this Court would violate the traditional notions of fair play and substantial justice. Plaintiffs Complaint should be dismissed. Venue is improper in this Court. Defendant denies this Court has personal jurisdiction and asserts this case should be dismissed due to a lack of a factual or legal nexus to the Western District of Wisconsin. Venue is also improper in this district. Plaintiffs venue facts do not support maintenance of this matter in this Court. Plaintiffs statement regarding Defendants alleged business activities in the State of Wisconsin is, . . . Defendant may be found in this District and the acts and transactions occurred in this District.5

See, Plaintiffs Complaint at paragraph 6.

DEFENDANTS MOTION TO DISMISS -- Page 9 of 12

Case: 3:13-cv-00524-wmc Document #: 10 Filed: 10/10/13 Page 10 of 12

However, venue is not appropriate in this district. With regard to corporations, 28 U.S.C. 1391(c) states as follows: (c) For purposes of venue under this chapter [28 U.S.C. 1391], a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. 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, such 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 not such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts. This rule does not support Plaintiffs choice of forum. In fact, these rules permit a cause of action to be filed only within a judicial district that has a substantial connection to the underlying factual basis of the claims, or has significant contacts with a defendant. Further, 28 U.S.C. 1391(c) allows for venue with respect to corporations only under circumstances in which a corporation would otherwise be subject to personal jurisdiction. As previously shown, personal jurisdiction over Defendant is inappropriate and this case should be dismissed. If the Court were disinclined to dismiss Plaintiffs case, 28 U.S.C. 1406 authorizes this Court, if venue is found to be inappropriate, to transfer this case to a court where venue is proper. The material part of 28 U.S.C. 1406 states: (a) The 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 to any district or division in which it could have been brought. In cases where the plaintiff is not a resident of this district, this Court has held that the plaintiffs choice of forum is afforded no deference. Uniroyal Engineered Prods., LLC v.
DEFENDANTS MOTION TO DISMISS -- Page 10 of 12

Case: 3:13-cv-00524-wmc Document #: 10 Filed: 10/10/13 Page 11 of 12

Omnova Solutions, Inc, No. 08-cv-586-SLC, 2009 U.S. Dist. Lexis 22518, at *8-9 (W.D. Wis. 2009). Further, neither a proper factual nor legal basis is present in the case at bar to maintain jurisdiction in this Court. To this end: a. Each and every communication between Plaintiff and Defendant, to the extent alleged in Plaintiffs complaint, occurred with Plaintiff at his residence in the State of Minnesota; b. c. Plaintiff resides in the State of Minnesota; Defendant does not maintain an office within the State of Wisconsin (Pye Declaration); d. Plaintiffs alleged damages occurred in the respective district and division in which Plaintiff resides; e. No material or relevant evidence or witnesses are located within the jurisdiction of the United Stated District Court for the Western District of Wisconsin. Defendants choice of forum is the Middle District of Florida, Jacksonville Division where its files, books, records, documents and witnesses are located. Defendant asserts the majority of the events giving rise to Plaintiffs claim arose at Defendants office and as such, this is the most appropriate factor in determining venue. See generally, Coppola, 250 F.R.D. at *9 11. In the alternative, venue should be transferred and is appropriate in the District of

Minnesota. No activity giving rise to Plaintiffs claims occurred in the State of Wisconsin. Plaintiff is not a resident of Wisconsin. Defendant is a corporate resident of Florida. Under such

DEFENDANTS MOTION TO DISMISS -- Page 11 of 12

Case: 3:13-cv-00524-wmc Document #: 10 Filed: 10/10/13 Page 12 of 12

circumstances, it is clear that this case cannot remain in the Western District of Wisconsin and must either be dismissed or transferred. Wherefore, the premises considered, Defendant prays that Plaintiffs case be dismissed. In the alternative, Defendant prays that Plaintiffs case be transferred to the United States District Court for the Middle District of Florida, Jacksonville Division. Alternatively, Defendant prays the Court transfer Plaintiffs case to the United States District Court for the District of Minnesota St. Paul Division. Defendant prays for such other and further relief, at law or in equity, to which Defendant may be duly entitled. Dated: October 11, 2013. Respectfully submitted, /s/ Steven R. Dunn Steven R. Dunn 5420 LBJ Freeway, Suite 577 Dallas, Texas 75240 (214) 692.5533 (telephone) (214) 692.5534 (telecopier) ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that on October 11, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following persons: Peter Barry 2701 University Avenue SE Suite 209 Minneapolis, MN 55414-3236 /s/Steven R. Dunn Steven R. Dunn

DEFENDANTS MOTION TO DISMISS -- Page 12 of 12