A civil procedure question. CA threatening to sue in wrong venue with longer SOL

[Jumpingm]

I am sorry if my question appears overly technical. I am a second year law student and I have a technical civil procedure question that I would like a technical answer to by an attorney. (I'm kind of embarrassed to ask a professor about delinquent debt reported on my CR)

The main issue is whether a CA who bought a debt that went delinquent to the OC while domiciled in Georgia haul me into court in Massachusetts under the following circumstances.

Here are the facts:

The OC account was established in, went delinquent in, was CO and sold to a CA while I was domiciled in Georgia. I moved to Massachusetts to attend school, but maintained my domicile in Georgia and I have a clear intent to return to Georgia at this time. I have established and continued to contact the OC and CA from my Massachusetts address. The SOL for an open account has run in Georgia but NOT in Massachusetts. CA is threatening to sue in MA and the debt is high enough that obtaining a judgment is a viable option.

Can it be found that my communications have created the minimum contacts allowing personal jurisdiction to be appropriate in MA? At this point I am only concerned about the maximum reach of long arm jurisdiction under the US Constitution.

If so, is there an argument that venue is improper in MA because the transaction or occurrence was in GA, or is the transaction or occurrence not limited to the date of original delinquency to the OC? Again, I am asking about the Constitutional limits of venue at this time.

In other words, can I successfully raise the affirmative defense(s) of lack of personal jurisdiction, improper venue or both in a direct attack if the CA actually files in MA?

Jumpingm

[mikey]

2nd year law student? hmmmmmm......I have to wonder about that. I have no formal education here and was able to find the limitation statue pretty easily for fla concerning a ca trying to collect in a state that I am in temporarily but with a longer sol than the one that has interest in (the tort and expiration of sol occurred). must the forum do your homework?lol

if you have a question, just do what the rest of us do...just ask. dont claim to be something that really doesnt matter to us.

[nascar]

I would wonder if the OC would still not be considered a resident of GA and SOL could be tolled in GA.

[Recovering Attorney]

A couple points:

1. Never use the phrase " viable option."

2. I think you answered your own question. The Fair Debt Collection Practises Act (FDCPA) 1681i(a)(2) says that " Any debt collector who brings any legal action on a debt against any consumer shall ... bring the action only in the judicial district (A) in which such consumer signed the contract sued upon; or ( in which such consumer resides at the commencement of the action. If you live in the state for nine months or more, don't you reside there? This is not a long-arm jurisdiction question. Long arm is where you want to sue Toyota when a part made in Singapore that was assembled in Tennessee breaks and causes an accident on Storrow Drive. You stated you have a Massachusetts address. You have a lease, a phone number, get mail? You go to school in MA, maybe even have a part-time job?

Here's a more practical point. The CA, who I assume is a MA company, sues you in MA. You are properly served under MA law. You show up and say, "I'm really a Georgia resident. so I object to the court's jurisidiction over me." The judge is likely to roll his eyes, then say "ok, that's great, but you are here, they are here, go outside and work this out." And when you say, "what about my motion?" the judge will simply say, "oh, yeah,. Denied!" Jurisidictional parsing does not work in a low level court, in my experience.

[mikey]

I would wonder if the OC would still not be considered a resident of GA and SOL could be tolled in GA.

i had to re-read his post and then i noticed he didnt mention how long he was in ga before he moved so tolling may be used with him. in my case, i moved after the sol had expired so i was a resident of az for over 3 years before i left the state and came to fla. i am only here temp till june and plan to return to az where i have a house. my residency in my mind is still az, but i do live in fla now. i never have switched my license over to fla, never got registered as a voter here but i have bought a car here and i do work part-time to make some money while i am here doing home repairs to my folks house (the reason i moved here temp). i consider myself like a student, i have an az residency while i am here, but maybe the court wont view it that way in this case, but that is why i did the research and found the limitation statute 95.10. and in my case, the sol ran out before i left the state. suppose i moved to nh or sc...the sol would have been less, they would not sue? they would sue either way, they dont care about sol. they hope for a quick default or a nervous debitor willing to pay settlement. well surprise...i am neither.

[Jumpingm]

Recovering Lawyer,

Thank you very much for your help and tip on the use of “viable option.”

It looks like you are quotingboth World-Wide Volkswagen Corporation v. Woodson and Asahi Metal Industry Co., Ltd. v. Superior Court of California. I understand those cases as they apply to the stream of commerce theory that you are getting at, but I think that my question really comes down to an issue of relatedness. Although the court could exercise jurisdiction to anyone at anytime as long as they are served in the state because they meet one of the four traditional basis for jurisdiction, there is still a requirement of relatedness.

For example, if you are properly served in MA for a contract that you executed in OH while domiciled in OH on a temporary visit to MA it should not survive a FRCP 12((6) motion to dismiss for lack of personal jurisdiction. In the above example you trip to OH would have not purposely availed yourself to the laws and protections of MA to engage in the contract and therefore should not expect to be hauled into court there for the contract.

Looking at Nowak v. Tak How Investments, Ltd the US Supreme Court specifically stated that relatedness is required to show foreseeability and used to determine purposeful availment. (i.e. the actions in MA were not the proximate cause (assuming PC is the standard for relatedness in MA rather than a broader standard such as “but for”) of the engagement of the OH contract and therefore the claim should be litigated in OH. Why tie up the limited judicial resources in MA for something the state has no interest in (enforcing an OH contract)?

My real question is since I have contacted them in MA using legal methods (CMRRR etc) is it possible for the court to find that since I have taken action while residing but not domiciled in MA (there is a legal difference between the words), can the court say “Ah-Ha, your actions in MA are related to the original transaction and you should have anticipated being hauled into court there under the authority of Nowak v. Tak How Investments, Ltd?”

The comapny is not a MA company. Are you saying that lower court judges just ignore motions to dismiss for lack of personal jurisdiction?

On a final note, Mikey, it is unnecessary for you to be rude to me. I asked a very specific question and your comment about not claiming to be something you are not blah blah is insulting. I gave the information because my very limited knowledge allows me to understand Civ Pro on a somewhat deeper level allowing an attorney to know that if he uses terms such as “streamline commerce theory, traditional basis of jurisdiction, proximate cause, purposeful availment, relatedness etc” and the appropriate case law I will understand the very specific legal meaning of those terms. The Courts very specific words are everything in law and these terms are used ad naseum in pleadings.

Mikey, you are talking about the difference between domicile and residency. There is a difference. For example: If you do not reside in AZ but wish to maitain domicile there with an express interest to return (i.e. paying taxes, registering to vote, owingn property, drivers license etc) someone from AZ could serve you a summons and complaint in California and as long as the other requirements were met (relatedness, purposeful availment, reasonableness etc) AZ would automaticaly have personal jurisdiction over you even if you have not been there in years.

Jumpingm

[Recovering Attorney]

You are overthinking it. And you won't be sued in federal court, so who cares about 12b6? You ignore my second point, which is that this argument will not impress a local court judge. Your heart may belong in Dixie, but you live, reside, are HERE in the Hub.

From your first post I am guessing your real question is how you could use the GA SOL as defense if you get sued in MA. That I can't answer but you might want to look into it.

If you want a technicality to win a lawsuit, think in terms of the SOL, or the statute of frauds, or standing, or the plaintiff's lack of legal capacity.

And another angle. If they sued you in GA, what would your response be? How would you defend it? How would you seek to resolve the matter?

[hannah]

Think a minute...if you have a vehicle, what state is it registered in? Where are you registered to vote? What state of residence is on your driver's license?

In addition, if the SOL had already run in GA when you moved to go to school in MA, then the debt is OOS as long as you can prove this if they sue you.

[admin]

if you have a question, just do what the rest of us do...just ask. dont claim to be something that really doesnt matter to us.

A little harsh, don't ya think?

[E. Normis Debtor]

It has nothing to do with long arm statutes or minimum contact.

If you are voluntarily physically present in MA when they serve you with a MA state court summons, the court has personal jurisdiction.

[hannah]

It has nothing to do with long arm statutes or minimum contact.

If you are voluntarily physically present in MA when they serve you with a MA state court summons, the court has personal jurisdiction.

So if I jaunt on over to the next state to do some shopping and I'm served at Pier One, that state has personal jurisdiction just because I am voluntarily physically present? Or another scenario, say my DS is going to school in another state (which he is), he can be served there and not get a dismissal based on no personal jurisdiction since he doesn't live there? Say it's not so...

[E. Normis Debtor]

Yes. But I thought you did all your shopping at Gucci

[mikey]

A little harsh, don't ya think?

got a privie that our law student's "technical" question and my "technical answer was too straight forward (harsh) and i i agreed...i appear to need anger management class (maybe he can recommend his school's psychic dept...lol

to further explain my harsh and incorrect answer at the time is that while reading his need for a "technical" answer to such a "technical" question was at the time comical. the laughter has since subsided and i realize that i was speaking too "technically" harsh. i just figured a "technical" second year student would know the "technical" answer to it.

i guess it was a combination of his question and the lack of answers i get on mine which go unanswered and i am the one with less "formal" education as our "second year law student"...

i help out when i can, but it appears my 'free consultation" here has ended

[hannah]

Yes. But I thought you did all your shopping at Gucci

Have you been stalking me again, Normie??

[Jumpingm]

Ok. Maybe I should explain what I am trying to accomplish. SOL has run in GA whare I entered the contract. SOL has not run in MA. CA sues in MA. I want action brought in GA because I have the affirmative defense of SOL which will dismiss the suit. I could bring up the point that SOL has expired in GA in MA court but that is more of a crapshoot. The judge may say too bad. Here is my plan.

1) Get rid of MA forum any way possible. Start with obj to personal jurisdiction because the contract was not in MA. Here is my authority. Light v. Roney, 4 Mass. L. Rep. 346

2) If that does not work state that SOL expired in GA where the action should have been brought.

Recovering attorney: I should have mentioned that MA has adopted FRCP 12((6). I know the case cannot be removed to federal court (no federal question and amount in controversy is not met), but the MA rule is identical to the FRCP.

E. Norman: Relatedness is still required. If you by a car in CA and drive to NV to visit a friend. You could be served in NV and the court would have PJ over you for anything related in NV. They cant force your contract to be subject to their laws however.

Jumpingm

[hannah]

Ok. Maybe I should explain what I am trying to accomplish. SOL has run in GA whare I entered the contract. SOL has not run in MA. CA sues in MA. I want action brought in GA because I have the affirmative defense of SOL which will dismiss the suit. I could bring up the point that SOL has expired in GA in MA court but that is more of a crapshoot. The judge may say too bad. Here is my plan.

1) Get rid of MA forum any way possible. Start with obj to personal jurisdiction because the contract was not in MA. Here is my authority. Light v. Roney, 4 Mass. L. Rep. 346

2) If that does not work state that SOL expired in GA where the action should have been brought.

Recovering attorney: I should have mentioned that MA has adopted FRCP 12((6). I know the case cannot be removed to federal court (no federal question and amount in controversy is not met), but the MA rule is identical to the FRCP.

Jumpingm

Do you have any counterclaims that fall under FCRA or FDCPA? If so, motion to remove to federal. IMHO, I think CA is blowing smoke.

[E. Normis Debtor]

1) Get rid of MA forum any way possible. Start with obj to personal jurisdiction because the contract was not in MA. Here is my authority. Light v. Roney, 4 Mass. L. Rep. 346

Your reliance on Light is misplaced. The court ruled they did have personal jurisdiction. The case was dismissed for failure to state a claim.

From Light v. Roney

*1 This is an action brought by the members of a family alleging, in essence, professional malpractice by an insurance agent relating to the sale and servicing of certain policies of insurance. The defendant agent, J. Michael Roney, d.b.a. Roney & Company (Roney), moves to dismiss the plaintiffs' claims on the ground that the court does not have personal jurisdiction over him, or in the alternative, that the complaint fails to state a claim upon which relief may be granted. For the following reasons, the court concludes that personal jurisdiction lies over the defendant. However, all but one of the counts of the amended complaint must be dismissed for failure to state a claim upon which relief may be granted.

[Jumpingm]

Hannah,

I can try to join federal claims, but I fear that they would be non compulsory counterclaims under FRCP 13 which would allow the federal court to keep the federal claims and remand the state claims to state court at its discretion. Having to litigate in two forums if this happened would be a nightmare.

It is a very good idea if I can show that the FDCPA violations arose out of the same transaction or occurance as the Contract claims thereby making them compulsory.

Does anyone have an opinion on this strategy? Do I want to litigate in the Federal District Court of MA? I do currently live in Boston so it would not be a hardship. Will a federal judge be less lienient to my inexperience in court then a local state judge?

Normis:

I would point out in the secondary holding in Light that: "Under the Massachusetts longarm statute, "[a] court may exercise personal jurisdiction over a person, who acts . . . as to a cause of action . . . arising from the person's . . . transacting business in the commonwealth." G.L.c. 223A, 3(a). "Generally the purposeful and successful solicitation of business from residents of the Commonwealth [*4] by a defendant or its agent will suffice to satisfy [the transacting business] requirement." Tatro v. Manor Care, Inc., 416 Mass. 763, 767, 625 N.E.2d 549 (1993) (citations omitted). The plaintiffs have established that such is the case here. Plaintiff Jonathan Light has stated, by way of affidavit, that the defendant solicited the plaintiffs' business by mail and by telephone at the plaintiffs' home in Massachusetts."

My facts are different. There was no solicitation in MA. Do you think this helps?

[nascar]

CHAPTER 260. LIMITATION OF ACTIONS

LIMITATION OF PERSONAL ACTIONS

Chapter 260: Section 9. Nonresident defendant; suspension of limitation

Section 9. If, when a cause of action hereinbefore mentioned accrues against a person, he resides out of the commonwealth, the action may be commenced within the time herein limited after he comes into the commonwealth; and if, after a cause of action has accrued, the person against whom it has accrued resides out of the commonwealth, the time of such residence shall be excluded in determining the time limited for the commencement of the action; but no action shall be brought by any person upon a cause of action which was barred by the laws of any state or country while he resided therein.

[E. Normis Debtor]

In Light, because the defendant resided in CA and was being sued in MA, they needed to show personal jurisdiction under MA's long arm statute.

You are present in MA. If suit is filed in MA and you're served in MA, the MA courts have personal jurisdiction......period.

[Jumpingm]

I think you hit the jackpot.

Normis: I thought about it and believe you are correct. Thank you very much.

Thanks to all of you who have helped me see the light. I'm still learning.

Jumpingm

[hannah]

Hannah,

I can try to join federal claims, but I fear that they would be non compulsory counterclaims under FRCP 13 which would allow the federal court to keep the federal claims and remand the state claims to state court at its discretion. Having to litigate in two forums if this happened would be a nightmare.

Any counterclaims of violations under the FCRA or the FDCPA are statutory.

It is a very good idea if I can show that the FDCPA violations arose out of the same transaction or occurance as the Contract claims thereby making them compulsory.

In order for you to have counterclaims, the underlying debt or transaction must be involved or you couldn't claim violations in the collection of the debt or raise counterclaims in the reporting of that debt.

Does anyone have an opinion on this strategy? Do I want to litigate in the Federal District Court of MA? I do currently live in Boston so it would not be a hardship. Will a federal judge be less lienient to my inexperience in court then a local state judge?

In most FCRA or FDCPA cases, federal judges are more likely to know the law than in state or small claims court. As to your inexperience, I cannot speak to that. I have found the clerks in federal court to be quite helpful. What kind of counterclaims might you have and do you have solid proof? Does the CA have solid proof? Who owns the debt, the OC or a JDB? Have you sent a VOD letter? I think you may be getting ahead of yourself here trying to figure out if and where they will sue.

[E. Normis Debtor]

For those who would like to further understand why presence in a state alone is sufficient to establish personal jurisdiction, I suggest a read of the US Supreme Court's ruling in Burnham v. Superior Court of California

[Jumpingm]

Hanna: Yes the FRCPA claims would be statutory and based on the CA collection techniques. I could raise them as a counterclaim. If done, then I could remove the case to Federal Court because a federal question exists. So here I am fat dumb and happy. Then a motion to remand the state claims (that I breached the contract) back to state court comes up.

Now I need to try argue that the contract claims should not be remanded because they all deal with the same "common nucleus of operative facts." Correct?

Ok. Im not thinking on this any more. Hopefully you are right about the CA.

[Jumpingm]

E. Normis:

I was asking the wrong question it seems. Hmmm. A plurality opinion by Scalia... interesting. No majority opinion was written.