WEINSTEIN et al v. PULLAR et al, No. 1:2013cv04502 - Document 18 (D.N.J. 2013)
Court Description: MEMORANDUM OPINION AND ORDER: ORDERED that Defendants' motions 6 & 8 shall be, and hereby are, GRANTED IN PART; and it is further ORDERED that this matter shall be, and hereby is, DISMISSED; and it is further ORDERED that the Clerk of Court shall CLOSE this matter. Signed by Magistrate Judge Ann Marie Donio on 12/19/2013. (tf, )
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[Doc. Nos. 6, 8] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE DAVID WEINSTEIN and CORINE WEINSTEIN, h/w Plaintiffs, Civil No. 13-4502 (AMD) v. JASON PULLAR, PATRICK R. NORRIS, ESQUIRE, and JOHN DOE 1-10 (fictitious persons responsible for the damages suffered by Plaintiffs), Defendants. MEMORANDUM OPINION AND ORDER Presently before the Court are Defendants motions to dismiss Plaintiffs complaint for improper venue, lack of personal jurisdiction, or, in the alternative, to transfer this matter to the United States District Court for the Northern District of Georgia, Atlanta Division (Motion to Dismiss for Lack of Jurisdiction (hereinafter, Pullar s Mot. ) [Doc. No. 6]; Motion to Dismiss for Lack of Jurisdiction (hereinafter, Norris s Mot. ) [Doc. No. 8], 2.) examines the Court s jurisdictional In this action, the Court reach over out-of-state Defendants Jason Pullar and Patrick R. Norris, Esquire, in the context of alleged Fair Credit Reporting Act violations asserted by Plaintiffs David Weinstein and Corine Weinstein, residents of New Jersey. The Court has considered the parties submissions, and held oral argument on the pending motions on October 23, 2013. For the reasons set forth herein, the Court grants Defendants motions in part, and shall dismiss this action for lack of personal jurisdiction. 1 Plaintiffs filed the initial complaint in this action on July 25, 2013. (See Complaint [Doc. No. 1].) Plaintiffs David Weinstein and Corine Weinstein allege that, in November 2012, Defendant Pullar asked Defendant Norris to review a contract between Pullar and Plaintiff David Weinstein, which is presently the subject of litigation in a pending matter in the Northern District of Georgia. (Id. at ¶ 8.) Plaintiffs further allege that, Defendant Norris [purportedly] opened an account with AmSher Collections Agency, Inc.[,] (id. at ¶ 9), and then conspired with [Agency] to consumer reports Plaintiffs run [Defendant illegal Pullar] credit regarding specifically to use inquiries Plaintiffs. allege that the and Collections [to] (Id. at Defendants request ¶ 12.) obtained Plaintiffs consumer reports through AmSher from Experian under false pretenses and knowingly without a permissible purpose[,] in violation of the Fair Credit 1 Reporting Act (hereinafter, The parties consented to this Court s jurisdiction pursuant to 28 U.S.C. § 636(c)(1), Federal Rule of Civil Procedure 73(b), and Rule 73.1 of the Local Civil Rules for the United States District Court, District of New Jersey. (See Consent to Jurisdiction [Doc. No. 12], 1.) 2 FCRA ), 15 Plaintiffs U.S.C. assert §§ 1681n, that 1681o. these (Id. inquiries at ¶ caused 19-25.) harm to Plaintiffs credit history, credit worthiness[,] (id. at ¶ 14), in addition to causing emotional distress, including anxiety, frustration, embarrassment[,] and humiliation. at ¶ 16.) purported Plaintiffs violation seek of monetary the FCRA, Plaintiffs emotional distress. Defendants complaint United or, States Georgia. for addition Defendants to damages for (See generally id. at ¶ 16.) separately alternatively, District in damages (Id. move to Court to dismiss transfer for the this Plaintiffs action Northern to District the of Defendants assert substantively identical arguments in support of the pending motions. Plaintiffs have failed to Defendant Pullar asserts that establish that Defendant Pullar possesses the requisite [minimum] contacts necessary for the Court to exercise personal jurisdiction. (Memorandum of Law in Support of Defendant s Motion to Dismiss Plaintiff s Complaint for Improper Venue or, in the Alternative, Transfer (hereinafter, Pullar s Br. ) [Doc. No. 6-2], 3.) Defendant District dismissed Pullar of New contends Jersey, pursuant 12(b)(2)[.] (Id.) to that and venue that Federal In the is this Rule of alternative, Venue Consequently, defective action Civil in should the be Procedure Defendant Pullar asserts that this action should be transferred to the proper 3 venue for this matter in the Northern District of Georgia because all events leading up to this litigation purportedly occurred in Georgia. (Id.) Defendant Norris also contends that this action should be dismissed contacts Norris. to because the assert[] Court lacks personal the requisite jurisdiction over minimum Defendant (Brief of Defendant Patrick R. Norris, Esq. in Support of his Motion to Dismiss pursuant to F.R.C.P. 12(B)(6) for Lack of Personal Transfer Jurisdiction, (hereinafter, or in Norris s the Alternative Br. ) [Doc. Motion 8-1], No. to 2.) Defendant Norris specifically asserts that because Norris has no residence, property, office in New Jersey or any other physical presence[,] no New Jersey bank account[,] and no New Jersey-based employees[,] Plaintiffs factually devoid allegations fail to satisfy Plaintiffs burden to establish personal jurisdiction over Norris[,] (Id. at 7), and derivatively, that this District constitutes an improper venue under 28 U.S.C. § 1406(a)[.] (Id. at 9.) In the alternative, Defendant Norris contends that transfer of this action to the Northern District of Georgia 2 would 2 be in the interest of In one portion of Defendant Norris s brief, Defendant asserts that the Middle District of Georgia would be the appropriate venue for this action. (See, e.g., id. at 1.) Notwithstanding this reference to the Middle District of Georgia, the Court finds Defendant Norris s request to be that this action be transferred to the Northern District of Georgia. (See, e.g., id. at 9.) 4 justice and for the convenience of parties because both Defendants reside in Georgia, [t]he majority of witnesses will likely be in Georgia[,] and because the already pending litigation in the Northern District of Georgia aris[es] out of the same facts and circumstances. (Id. at 9-10 (citation Plaintiffs generally omitted).) In response to these motions, assert that jurisdiction exists in New Jersey by virtue of Defendants violation of the FCRA[,] which was calculated to cause injury to residents of New Jersey[.] in Opposition to Defendants Motion to (Plaintiffs Brief Dismiss for Lack of Personal Jurisdiction or, in the Alternative, Motion to Transfer (hereinafter, Pls. Opp n ) [Doc. specifically assert that Court jurisdiction over Defendants No. 11], may because FCRA 4.) Plaintiffs exercise case personal law confers jurisdiction over a non-resident defendant [who] obtains credit reports without the permission of the resident plaintiff. (Id. at 3, 5.) Defendants violation creates dispute specific that that jurisdiction. the alleged (Reply Brief FCRA of Defendant Patrick R. Norris, Esq. in Support of his Motion to Dismiss pursuant to F.R.C.P. 12(B)(6) for Lack of Personal Jurisdiction, or in the Alternative Transfer to the Northern District of Georgia (hereinafter, Norris s Reply ) [Doc. No. 5 14], 3; Reply Brief of Defendant Jason Pullar in Support of his Motion to Dismiss pursuant to F.R.C.P. 12(B)(6) for Lack of Personal Jurisdiction, or in the Alternative Transfer to the Northern District of [Doc. No. 15], 4.) universe accord Georgia (hereinafter, Pullar s Reply ) Although asserting that case law evinces no with respect to whether an FCRA violation supports the exercise of personal jurisdiction over a defendant, Defendants argue that the Court should analyze personal jurisdiction in accordance with the effects test set forth in Calder v. Jones, 465 U.S. 783 (1984). No. 14], 4; Pullar s Reply [Doc. No. (Norris s Reply [Doc. 15], 4.) Defendants further assert that New Jersey is not the focal point of the tortuous activity so as to support personal jurisdiction over Norris for activities that took place in Georgia and/or Alabama. (Norris s Reply [Doc. No. 14], 6 (citations omitted); Pullar s Reply [Doc. No. 15], 5 (citations omitted).) Consequently, Defendants assert that Georgia, rather than New Jersey, constitutes the appropriate forum for this action. (See generally Norris s Reply [Doc. No. 14], 10-11; Pullar s Reply [Doc. No. 15], 8.) Defendants Plaintiffs credit alleged reports wrongful relates, in conduct part, in to obtaining a contract dispute that is currently the subject of pending litigation in the Northern District of Georgia. 6 (See Complaint [Doc. No. 1], ¶ 8.) On January 23, 2012, Defendant Pullar filed a complaint in the United States District Court for the Northern District of Georgia generally alleging, in part, that Plaintiffs, among others, refused and failed to deliver the certain billing, collection, and answering services accounts in breach of an asset purchase agreement dated June 15, 2012. (Id. at ¶¶ 26, 6570.) that In the Georgia action, Defendant Pullar further alleges Plaintiffs fraudulently induced Defendant Pullar into executing the asset purchase agreement through representations regarding the value of the Accounts and, specifically, monies [] Pullar would collect from such accounts[.] 78.) the (Id. at ¶ As set forth supra, Plaintiffs allege in this action that Defendants unlawfully obtained reports[,] in violation of the FCRA. Plaintiffs consumer (Complaint [Doc. No. 1], ¶¶ 19-25.) In evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2), the district court must accept all of the plaintiff s allegations as true and construe disputed facts Renaissance in Marine, favor Inc., of the 566 plaintiff. F.3d 324, 330 Metcalfe (3d Cir. v. 2009) (quoting Toys R Us, Inc. v. Step Two, S.A., 318 F.3d 446, 457 (3d Cir. 2003) (citation omitted)). However, the plaintiff bears the burden to prove, by a preponderance of the evidence, facts sufficient to establish personal jurisdiction. 7 Horton v. Martin, 133 F. App x 859, 860 (3d Cir. 2005) (citing Carteret Sav. Bank, FA v. Shushan, 954 F. 2d 141, 145 (3d Cir. 1992)). A plaintiff must sustain its burden to establish a prima facie case other of personal competent jurisdiction through evidence[,] sworn Metcalfe, affidavits 566 F.3d at or 330 (quoting Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996)), because [a] Rule 12(b)(2) motion necessarily requires resolution of factual issues outside the pleadings. Northstar Marine, Inc. v. R & A Marine, Inc., No. 12-4438, 2013 WL 3873232, at *2 (D.N.J. July 25, 2013) (quoting Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 67 n.9 (3d Cir. 1984)). lack of Therefore, in response to a motion to dismiss for personal jurisdiction, plaintiff must respond with actual proofs and may not rely on the bare pleadings[,] without more. Edelson V, L.P. v. Encore Networks, Inc., No. 11- 5802, 2012 WL 4889439, at *1 (D.N.J. Aug. 13, 2012) (quoting Patterson ex rel. Patterson v. F.B.I., 893 F.2d 595, 604 (3d Cir. 1990)), adopted by, 2012 WL 4891695 (D.N.J. Oct. 12, 2013). A jurisdiction federal over Jersey state law. court parties to sitting the in extent New Jersey provided under has New Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004) (citing FED. R. CIV. P. 4(e)). New Jersey s long arm statute confers jurisdiction coextensive with the due process requirements of the United States Constitution. 8 Id. (quoting N.J. Court Rule 4:4-4(c)). Thus, parties with constitutionally sufficient minimum contacts may properly be subject to suit in this District. Id. (quoting Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 149 (3d Cir. 2002)). At oral argument, Plaintiffs conceded that Defendants do not have the requisite continuous and systematic contacts with New Jersey to subject Defendants to general jurisdiction in this forum. See generally Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 n.1 (3d Cir. 2002) (noting that general jurisdiction requires the defendant s contacts continuous and systematic ). the Court may exercise with the forum to be Rather, Plaintiffs assert that personal jurisdiction over Defendants because Defendants purposefully caused an event to occur in New Jersey[,] which Defendants purportedly calculated to cause injury to residents of New Jersey. 4.) (Pls. Opp n [Doc. No. 11], Therefore, the Court must consider whether the nature of Defendants alleged actions suffice to confer specific personal jurisdiction over the Defendants. Generally, jurisdiction, the in defendant order to must have establish specific purposefully directed [its] activities at the forum[,] O Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)), the litigation must arise out of or relate to at least one of those activities[,] 9 Id. (citations omitted), and then, assuming satisfaction of the prior two requirements[,] a court considers whether the exercise of jurisdiction otherwise comport[s] with fair play and substantial justice. plaintiff tort, alleges as that here, Id. (citations omitted). a the defendant plaintiff committed may an Where the intentional establish specific jurisdiction under the effects test set forth by the United States Supreme Court in Calder v. Jones, 465 U.S. 783 (1984). Edelson, 2012 WL 4889439, at *3 (citing Calder, 465 U.S. 783). Under that test, a plaintiff must demonstrate that: (1) [t]he defendant committed an intentional tort; (2) [t]he plaintiff felt the brunt of the harm in the forum such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of that tort; and (3) [t]he defendant expressly aimed his tortious conduct at the forum such that the forum can activity. be said to be the focal point of the tortious Marten v. Godwin, 499 F.3d 290, 297 (3d Cir. 2007) (citing IMO Indus. v. Kiekert AG, 155 F.3d 254, 265-66 (3d Cir. 1998)). Therefore, a plaintiff must establish that the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and [must] point to expressly (quoting specific aimed IMO its Indus., activity indicating tortious 155 conduct F.3d 10 at at 266) that the the defendant forum. (citation Id. omitted)). [T]he state of a plaintiff s residence does not[,] without more, create jurisdiction over nonresident defendants. Rather, a plaintiff must deliberate targeting of allege [the specific forum][.] facts Id. showing LaSala v. a Marfin Popular Bank Public Co., Ltd., 410 F. App x 474, 477 (3d Cir. 2011) (quoting Marten, 499 F.3d at 298). plaintiff fails to show that the Consequently, [i]f a defendant manifest[ed] behavior intentionally targeted at and focused on the forum, the plaintiff fails to establish jurisdiction under the effects test. Marten, 499 F.3d at 298 (internal citations omitted). In this case, Plaintiffs assert that the Court may exercise personal jurisdiction Defendants purposefully Jersey[,] and caused purportedly over an 4.) event calculated injury to residents of New Jersey. Defendants [that to because occur event] in to New cause (Pls. Opp n [Doc. No. 11], In reliance on case law from other circuits, including the Ninth Circuit opinion of Myers v. Bennett Law Offices, 238 F.3d 1068 (9th Cir. permissibly (Id. at 5.) 2001), exercise Plaintiffs personal assert that jurisdiction the over Court may Defendants. In Myers, the Ninth Circuit reversed the lower court s ruling that the court lacked personal jurisdiction over a defendant in an FCRA action. Id. at 1076. Specifically, the Ninth Circuit considered whether the defendant s act in Utah of obtaining the credit report of a Nevada resident sufficed to 11 confer personal jurisdiction over a defendant in the District of Nevada. Id. jurisprudence concluded at 1071. In interpreting that Nevada reliance the on Calder constituted the Ninth effects the Circuit s test[,] focal point Myers both of the credit report inquiry and the location where plaintiff suffered the brunt of plaintiff s emotional distress[.] Id. at 1074-75 (citation omitted). The Ninth Circuit therefore found that the defendant purposefully availed itself of Nevada by intentionally direct[ing] [defendant s] activities into [Nevada] and that defendant failed to meet its burden to demonstrate that the exercise Nevada would be unreasonable. Unlike Myers, the of personal jurisdiction in Id. at 1075 (citation omitted). Third Circuit s interpretation of the Calder effects test prevents a defendant from being haled into a jurisdiction solely because the defendant intentionally caused harm that [the plaintiff] felt in the forum state[.] Marten, 499 F.3d at 297. experience[s] the The mere allegation that the plaintiff injury caused by defendant s allegedly tortious conduct does not, without more, show that defendant expressly aimed its conduct at New Jersey. F.3d at 265 n.8 (citation omitted). show that targeted at satisfied. Defendants and Plaintiffs must therefore manifest[ed] focused on [New IMO Indus., 155 behavior Jersey] for intentionally Calder to be IMO Indust., 155 F.3d at 265 (quoting ESAB Grp. v. 12 Centricut, example, Inc., in Marten Pennsylvania, against 126 F.3d v. asserted nonresident Pennsylvania. 617, Godwin, 625 the claims for defendants Cir. plaintiff, defamation in Notwithstanding (4th the 1997)). a resident and Eastern plaintiff s For of retaliation District assertion of that Pennsylvania constituted the focal point of the harm caused by defendants court dismissed plaintiff s action for lack of personal jurisdiction. 499 F.3d at 294. defamatory The Third remarks, Circuit the district affirmed the district court s determination and concluded that, even if plaintiff felt the brunt of the harm in Pennsylvania, nothing in the record indicate[d] that defendants made defamatory statements or sent defamatory perhaps, material to anyone [Plaintiff]). Id. in at Pennsylvania 298-299. (other than, Consequently, the Marten court held that Plaintiff failed to show jurisdiction over these [nonresident] defendants because plaintiff failed to allege any specific facts showing a deliberate targeting of Pennsylvania. this action Id. at 298. have not alleged Much like Marten, Plaintiffs in specific facts deliberate [or express] targeting of New Jersey. to show[] a LaSala, 410 F. App x at 477 (quoting Marten, 499 F.3d at 298). Instead, Plaintiffs assert that they suffered the effects of Defendants tortious conduct in New Jersey, where Plaintiffs reside. Opp n [Doc. No. 11], 4.) (Pls. However, merely experienc[ing] the 13 injury in the state of Plaintiffs residence, without more, fails to demonstrate that Defendants expressly aimed [their] conduct at New Jersey. IMO Indus., 155 F.3d at 265 n.8 (finding letters mailed to New York insufficient to demonstrate that defendant expressly aimed its tortious conduct at New Jersey, even though it was reasonably foreseeable that [the letters] would wind up New Jersey ); see also Marten, 499 F.3d at 298 (noting that the state of a plaintiff s residence does not[,] without defendants ). more, create jurisdiction over nonresident Similarly, in Agbottah v. Orange Lake Country Club, No. 12-1019, 2012 WL 2679440 (D.N.J. July 6, 2012), the court considered whether there was personal jurisdiction over a nonresident report defendant about the that New purportedly Jersey filed plaintiff nationwide credit reporting agency. a with Id. at *4. false credit Experian, a In Agbottah, plaintiffs asserted that New Jersey constituted the focal point of the harm because defendant s filing of the false credit report allegedly caused severe financial harm to plaintiffs in New Jersey. allegations effects Id. at *5. patently test The Agbottah court found plaintiffs insufficient because to plaintiffs failed direct targeting towards New Jersey. 155 F.3d at 261). allegations invoke to the [Calder] establish any Id. (quoting IMO Indus., The Court likewise concludes that Plaintiffs concerning the effects 14 of the allegedly tortious conduct are insufficient to establish express targeting of harm at New Jersey and to subject the nonresident Defendants to this Court s jurisdiction. See Marten, 499 F.3d at 299 (finding that the Eastern District of Pennsylvania did not have jurisdiction over the defendants because plaintiff failed to show specific activity indicating the defendants expressly aimed their conduct at Pennsylvania ); Edelson, 2012 WL 4889439, at *5-*6 (finding defendant s insufficient to defendant s alleged demonstrate conduct at fraudulent that New misrepresentations defendant Jersey or expressly manifested aimed behavior intentionally targeted at and focused on the forum ). Nor have Plaintiffs proffered any establish a direct targeting of this forum. other to Indeed, Plaintiffs proffer no set of specific jurisdictional facts. Complaint [Doc. No. 1].) facts (See generally Rather, as set forth supra, Plaintiffs rely upon the minimal allegations concerning Defendants FCRA violations and the purported effects of those violations. Complaint [Doc. No. 1], ¶¶ 7-18.) (See Defendants proffered specific facts concerning their lack of jurisdictional contacts with this forum. (Norris s Mot. [Doc. No. 8-5], Ex. C, ¶¶ 1-23; Pullar s Br. ) [Doc. No. 6-2], 1-3; Norris s Reply [Doc. No. 14-2], Ex. A, 2-4.) By way of example, Defendant Norris specifically asserted that he has not availed himself of the privilege of conducting any activities in New 15 Jersey, and that [a]ny witness concerning [P]laintiff[s ] Alabama. the allegations complaint would be [set located forth] Georgia in in or (Norris s Mot. [Doc. No. 8-5], Ex. C, ¶¶ 20, 22.) Plaintiffs cannot establish personal jurisdiction through reliance on the bare pleadings[,] Northstar Marine, Inc. v. R & A Marine, LLC, No. 12-4438, 2013 WL 3873232, at *1 (D.N.J. July 25, 2013) (citing Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 67 n.9 (3d Cir. 1984)), and must instead present sworn affidavits or other competent evidence. Northstar, 2013 WL 3873232, at *1 (citing Time Share, 735 F.2d at 67 n.9). Plaintiffs have proffered neither sworn affidavits nor other competent evidence to establish any alternative ground on which the nonresident Plaintiffs Court could Defendants. have failed exercise jurisdiction Therefore, to support the an Court exercise jurisdiction over these nonresident Defendants. over finds of the that personal See Ispec, Inc. v. Tex R.L. Indus. Co., No. 12-4339, 2013 WL 5436538, at *3 (D.N.J. Sept. 27, 2013) (dismissing certain defendants where plaintiff failed to meet its burden of proving facts sufficient to establish personal jurisdiction ). Consequently, for the reasons set forth herein, the Court finds no personal dismisses this action. jurisdiction over jurisdiction over Defendants and In addition, having found no personal Defendants, 16 the Court need not address Defendants arguments concerning transfer of this action. (See generally Pullar s Br. [Doc. No. 6-2], 3; Norris s Br. ) [Doc. No. 8-1], 9-10.) See also Jakks Pac., Inc. v. Conte, No. 11- 479, 2011 WL 6934856, at *1 n.1 (D.N.J. Dec. 30, 2011) (citation omitted) ( Since the Court dismisses Plaintiff s Complaint for lack of personal jurisdiction, it declines to address Defendants alternative arguments, i.e., dismissal for improper venue as well as transfer for the convenience of the parties and witnesses. ). IT IS on this 19th day of December 2013, ORDERED that Defendants motions [Doc. Nos. 6, 8] shall be, and hereby are, GRANTED IN PART; and it is further ORDERED that this matter shall be, and hereby is, DISMISSED; and it is further ORDERED that the Clerk of Court shall CLOSE matter. s/ Ann Marie Donio _____ ANN MARIE DONIO UNITED STATES MAGISTRATE JUDGE 17 this
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