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Alicia Mendez v. Law Offices of Cohen & Slamowitz Llp

November 17, 2011

ALICIA MENDEZ,
PLAINTIFF,
v.
LAW OFFICES OF COHEN & SLAMOWITZ LLP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William J. Martini, U.S.D.J.:

OPINION

Plaintiff Alicia Mendez brings this action against Law Offices of Cohen & Slamowitz, LLC*fn1 ("Cohen") and Target National Bank ("Target") (collectively "Defendants"), alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (2011) ("FDCPA"), and the Fair Credit Reporting Act, 15 U.S.C. § 1681s-2 (2011) ("FCRA"). This matter comes before the Court on Defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(3) for improper venue*fn2 and Target's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The motions are unopposed. There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons set forth below, Defendants' Rule 12(b)(3) motion is GRANTED and Plaintiff's claims are DIMISSED WITHOUT PREJUDICE.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is a consumer residing in Woodside, New York. Target is a national bank with its main office in Sioux Falls, South Dakota. Cohen is a debt collection agency with an office in Woodbury, New York.

According to the Complaint, at some unspecified point in time, information appeared on Plaintiff's credit report indicating that Plaintiff had failed to repay a debt she owed to Target. On April 22, 2010, Plaintiff's attorney sent a letter to Target informing Target that Plaintiff was represented by counsel for purposes of the alleged debt. On July 2, 2010, Cohen, Target's debt collector, sent a letter directly to Plaintiff regarding the alleged debt. On July 12, 2010, a letter disputing the debt was sent to Cohen. Plaintiff alleges that her credit report was never updated to reflect the fact that the debt was in dispute.

On June 28, 2011, Plaintiff filed a Complaint in the Superior Court of New Jersey, Hudson County, asserting claims against Cohen and Target for violations of the FDCPA and FCRA. Specifically, the Complaint alleges that: (1) Cohen improperly contacted Plaintiff when Cohen knew or should have known that Plaintiff was represented by counsel; and that (2) Cohen and Target should have communicated to the relevant credit reporting agency that the debt was in dispute. On August 9, 2011, Defendants removed the action to this Court. Both Defendants now move to dismiss under Rule 12(b)(3) for improper venue. Target also moves to dismiss under Rule 12(b)(6) for failure to state a claim under the FDCPA and FCRA.

II. DISCUSSION

A. Improper Venue

Federal Rule of Civil Procedure 12(b)(3) provides that a motion to dismiss may be made on the basis of improper venue. In the Third Circuit, the burden of demonstrating improper venue is placed on the defendant. See Myers v. Am. Dental Ass'n, 695 F.2d 716, 724-25 (3d Cir. 1982).

In federal question cases such as this one, venue is governed by 28 U.S.C. § 1391(b) (2011), which provides:

A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State; (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) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

Because venue is not proper under subsections (1), (2), or (3), venue is improper in this district.

1.Venue is Not Proper Under 28 U.S.C. § 1391(b)(1)

Under 28 U.S.C. ยง 1391(b)(1), venue is proper in a judicial district "where any defendant resides, if all defendants reside in the same State." In other words, venue is proper in this district under subsection (1) only if both Defendants reside in New Jersey. ...


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