Batts v LVNV Funding LLC

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Batts v LVNV Funding LLC 2022 NY Slip Op 34185(U) December 9, 2022 Supreme Court, New York County Docket Number: Index No. 153884/2022 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 153884/2022 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/09/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COU,N TY ! PRESENT: 33M PART HON. MARY V. ROSADO Justice --------------------X INDEX NO. BRENISHA DANIELLE BATTS, MOTION DATE Plaintiff, MOTION SEQ. NO. 153884/2022 12/01/2022 001 - V - LVNV FUNDING LLC,PORTFOLIO RECOVERY ASSOCIATES, L.L.C., MEDICAL DATA SYSTEMS, INC. DECISION + ORDER ON MOTION Defendant. --------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10 DISMISS were read on this motion to/for Upon the foregoing documents, and there being no opposition, Defendant L VNV Funding . "j LLC's ("L VNV") motion to dismiss Plaintiff Brenisha Danielle Batts' ("Plaintiff') Complaint for lack of personal jurisdiction, and failure to state a claim is granted. ·I. Procedural and Factual Background Plaintiff filed her Summons and Complaint on May 4; 2022 (NYSCEF Doc; 1). In he:r Complaint, which is only one page long, Plaintiff allegbs that Defendants L VNV, Portfolio Recovery Associates, L.L.C. ("Portfolio"), and Medical Data Systems, Inc. ("Medical Data") (collectively "Defendants") have attempted to collect deb~s totaling $903 , $959, and $3,279 in ! violation of the Fair Debt Collection Practices Act (id. at 11 4-8). Plaintiff aUeges these acts, including the reporting of allegedly mistaken debts to consumer reporting agencies, make the Defendants liable to Plaintiff for defamation, negligence, and negligence per se (id. at 18). Plaintiff fails to plead in her Complaint where she is domiciled and where Defendants are domiciled. Plaintiff never filed affidavits of service on any of tije Defendants. On November 16, 2022, LVNV filed the instant motion to dismiss (NYSCEF Doc. 3). In support of its motion, LVNV 153884/2022 BATTS, BRENISHA DANIELLE vs. LVNV FUNDING LLC ET AL Motion No. 001 [* 1] 1 of 4 Page_1 of 4 INDEX NO. 153884/2022 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/09/2022 provided a n~tice of service of process from its designated a~ent in Albany, New York (NYSCEF Doc. 8). That document shows that LVNV was served on Oc_tober 28, 2022 (id.). Plaintiff has filed no opposition in response, and to date, has not filed on NYSCEF any affidavit of service as to any of the Defendants. On November 17, 2022, Defendant Portfolio filed its Answer (NYSCEF Doc. 11 ). Defendant Medical Data has not answered or otherwise appeared. II. Discussion Pursuant to CPLR § 306-b, "service of the summons and complaint shall be made within one hundred twenty days after the commencement of the action ?r proceeding". Further, CPLR § 306-b provides that "[i]f service is not made upon a defendant within the time provided in this 1 section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service." According to the service of process documents pro ided by L VNV, service was not made until October 28, 2022 even though this action was commenced on May 4, 2022 (NYSCEF Doc. 8). Plaintiff served Defendant 177 days after the commenctment of her action and is therefore in violation of CPLR § 306-b. Moreover, Plaintiff never sought an extension ohime to serve LVNV, nor has she even opposed this motion (see Leader v Mar?rey, Ponzini & Spencer, 97 NY2d 95, 106 [2001]; see also Goldstein Group Holding, Inc. v 310 f· 4th St. Hous. Dev. Fund Corp., 154 AD3d 458, 458-459 [1st Dept 2017] [Plaintiffs complaint .properly dismissed where service was I . made after 120 days expired and Plaintiff failed to establi_sh good cause or that an extension of time to serve would be in the interests of justice]). Therefore, the Complaint against L VNV should be dismissed for lack of personal jurisdiction. " Besides CPLR § 306-b, Plaintiff also suffers from another personal jurisdiction obstacle. Indeed, based on the bareboned allegations in the Complaiht, and the papers submitted in support 153884/2022 BATTS, BRENISHA DANIELLE vs. LVNV FUNDING LLC ETAL Motion No. 001 [* 2] 1 2 of 4 Page 2 of 4 INDEX NO. 153884/2022 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/09/2022 of LVNV's motion, this Court cannot exercise personal juiisdiction over Plaintiff. According to an affidavit executed by Patricia Sexton, LVNV is incorporated in Delaware and has its sole office in Las Vegas, Nevada (NYSCEF Doc. 7 at ,r,r 6-7). L VNV is registered in New York as a foreign limited liability company and is therefore not domiciled in New York (id. at ,r 8). Thus, this Court may not exercise general jurisdiction over L VNV, but can only exercise specific jurisdiction (English v Avon Products Inc., 206 AD3d 404 [1st Dept;2022]). In order to exercise specific jurisdiction, a defendant must have conducted business witliin this state, and the plaintiffs claims must arise from the business defendant conducts in New York (Matter of New York City Asbestos Litig., 206 AD3d 442,443 [1st Dept 2022]). A corporate defendant's registration to do business in a forum state, and the designation of the Secretary of State to accept service of process in the state, does not, without more, constitute sufficient nexus to confer this Court with personal jurisdiction over a corporate defendant (Fekah v Baker Hughes Inc. 176 AD3d 527, 528 [1st Dept 2019]). Further, on a motion to dismiss for lack of personal hrisdiction, the plaintiff has the burden of presenting sufficient evidence, through affidavits and relevant documents, to demonstrate jurisdiction (Coast to Coast Energy, Inc. v Gasarch, 149 AD3d 485,486 [1st Dept 2017]). Notably, the Complaint is silent as to where Plaintiff resides or where the alleged collection attempts took place (NYSCEF Doc. 1). Plaintiff has not provided any opposition to LVNV's motion asserting that this Court may not exercise personal jurisdiction over ,L VNV, nor are there any affidavits or even allegations that would support this Court exercisirlg personal jurisdiction over LVNV. Plaintiff has clearly fallen short of its burden to demonstrate jurisdiction. Moreover, L VNV has demonstrated via Patricia Sexton's affidavit that L VNV is not domiciled in New York and all collection attempts which ostensibly gave rise to Plaintiff°~ claims have been made at Plaintiffs addresses in Illinois and Georgia (NYSCEF Doc. 7 at ,r 1oj'. 153884/2022 BATTS, BRENISHA DANIELLE vs. LVNV FUNDING LLC ET AL Motion No. 001 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 153884/2022 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/09/2022 Thus, because L VNV is not domiciled in New Y otk, L VNV has submitted an affidavit showing Plaintiff' s claims against LVNV arose out of LVNV's actions in Illinois and Georgia, 1 Plaintiff has not claimed to be a citizen of New York, and b bcause Plaintiff has failed to meet her burden of showing how this Court may exercise jurisdiction over LVNV, Plaintiff' s Complaint against LVNV must be dismissed for lack of personal jurisdiction. As this Court may not exercise •I personal jurisdiction over L VNV, the Court need not reach ,~hether Plaintiff has sufficiently stated a .claim against LVNV. Accordingly, it is hereby, ORDERE D that Plaintiff Brenisha Danielle B~tts' ;complai nt against Defendant LVNV Funding LLC is dismissed in its entirety; and it is further .;: ORDERE D that within thirty days of entry, counse~ for Defendant LVNV Funding LLC : . shall serve a copy of this Decision and Order with ·notice d,f entry upon all parties to this action; and it is further ii ORDERE D that the Clerk of the Court is directed tqenter judgmen t accordingly. This constitutes the Decision and Order of the Court. 12/9/2022 DATE : MARY V. ROSADO, J.S.C. CASE DISPOSED CHECK ONE: x GRANTED • x DENIED ·; NON-FINAL DISPOSITION <I GRANTED ,, IN PART APPLICATION: SETTLE ORDER . SUBMIT ORDER CHECK IF APPROPRIAT E: INCLUDES TRANSFER/REASSIGN Ii FIDUCIARY APPOINTMENT • • OTHER REFERENCE ; ll 153884/2022 BATTS, BRENISHA DANIELLE vs. LVNV FUNDING LLC ETAL · Motion No. 001 [* 4] 4 of 4 Page 4 of 4

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