White v. Davidson

952 F.Supp.2d 80

Patricia WHITE and Latricia Hardy, Plaintiffs,

v.HILLCREST DAVIDSON AND ASSOCIATES, Defendant.

Civil Action No. 12–1346 (ABJ).

United States District Court, District of Columbia.

July 5, 2013.

Patricia White, Washington, DC, pro se.

Latricia Hardy, Washington, DC, pro se.

Vincent Thomas Lyon, Law Office of Vincent Thomas Lyon, Palm Coast, FL, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

This matter is before the Court on the motion to dismiss filed on behalf of Hillcrest Davidson and Associates and the plaintiff's responses to the motion.¹ For the reasons discussed below, the motion will be granted.

I. BACKGROUND

The plaintiff brings this action against Hillcrest Davidson and Associates (“Hillcrest”) under the Fair Credit Reporting Act (“FCRA”), see15 U.S.C. § 1681, the Fair Debt Collection Practices Act (“FDCPA”), see15 U.S.C. § 1692, and the D.C. Consumer Protection Procedures Act (“CPPA”), seeD.C.Code § 28–3904. She alleges that Hillcrest, a Texas corporation, erroneously has “reported [her] as a collection to the three Credit Bureaus.” Compl. ¶ 9; see id. ¶¶ 1, 3. As a result, she alleges, “her credit score dropped drastically ... which prevented her from getting some necessary loans.” Id. ¶ 12. “Although these errors were corrected, the misplacement of this on the Plaintiff's credit reports presented undue hardship on [her].” Id. ¶ 13. The plaintiff demands a judgment in her favor and an award of “statutory damages of $15,000.00 ..., any legal or Court fees and costs pursuant to 15 U.S.C. § 1681n[ ] and § 1692i.” Id. ¶ 14.

II. DISCUSSION

On September 15, 2012, Hillcrest moved to dismiss the complaint for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted. See Def.'s Mot. to Dismiss Compl. & Brief in Support of Mot. to Dismiss Compl. (“Def.'s Mot.”) [Dkt. No. 4] at 1. The Court issued an order pursuant to Fox v. Strickland, 837 F.2d 507, 509 (D.C.Cir.1988), that advised the plaintiff to respond by October 19, 2012 [Dkt. No. 5]. On October 18, 2012, the plaintiff opposed the motion. See Pl.'s Resp. to Def. Mot. to Dismiss (“Pl.'s Opp'n”) [Dkt. No. 6]. Upon receipt of the plaintiff's opposition, which focused on the question of federal subject matter jurisdiction, on March 7, 2013, the Court issued another order directing the plaintiff to file a supplemental response addressing the question of personal jurisdiction [Dkt. No. 7]. The plaintiff supplemented her opposition on March 25, 2013. See Pl.'s Supp. Resp. to Def.'s Mot. to Dismiss (“Pl.'s Supp. Resp.”) [Dkt. No. 9].

A. Dismissal Under Rule 12(b)(2) for Lack of Personal Jurisdiction

The plaintiff bears the “burden of establishing personal jurisdiction over [the] defendant.” Thompson Hine LLP v. Smoking Everywhere, Inc., 840 F.Supp.2d 138, 141 (D.D.C.2012) (citing Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 455–56 (D.C.Cir.1990)). A plaintiff cannot rely on bare allegations or conclusory statements, but “must allege specific acts connecting [the defendant] with the forum.” Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C.Cir.2001) (internal quotation omitted). The plaintiff's pro se status does not relieve her of her obligation to “plead an adequate jurisdictional basis for her claims.” Donnelly v. Sebelius, 851 F.Supp.2d 109, 116 (D.D.C.2012) (internal quotation omitted).

Hillcrest argues that the plaintiff has not alleged sufficient facts to carry her burden to show that this Court has personal jurisdiction over the defendant and therefore, the complaint should be dismissed pursuant to Rule 12(b)(2). Def.'s Mot. at 3. “No where in the [p]laintiff['s] complaint do[es] the [p]laintiff[ ] allege specific facts connecting [the] defendant with the forum.” Id. at 3–4.

The plaintiff responds that this Court's “jurisdiction ... arises under (FRCA) 15 U.S.C. § 1681 ... & 15 U.S.C. [§ ]1692 ... along with D.C.Code [ ] § 28–3904 ... in that Defendant did indeed violate the Fair Credit Reporting Act.” Pl.'s Opp'n ¶ 2. In her supplemental response, she repeats that “the jurisdiction of this Court is conferred by 15 U.S.C. [§ ]1681p.” Pl.'s Supp. Resp. ¶ 1. Further, the plaintiff asserts that the District of Columbia's long-arm statute includes “a reference to the authorization to ‘reach out’ beyond the borders of a state,” id. ¶ 3, and that it applies to Hillcrest because it “causes injury here by an act committed elsewhere,” id. ¶ 4. Lastly, citing Rule 4 of the Federal Rules of Civil Procedure, she claims that “serving a summons ... establishes personal jurisdiction.” Id. ¶ 2. The plaintiff, who has blurred the distinction between subject matter jurisdiction and personal jurisdiction, is mistaken on all counts.

The plaintiff's reliance on 15 U.S.C. § 1681p is misplaced, as this section establishes a limitations period within which to bring an action under the FCRA “in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction.” Id. The statute does not purport to deal with the question of personal jurisdiction, and the plaintiff does not indicate any particular provision of the FDCPA or CPPA relevant to this discussion. Further, the service of a summons and complaint does not alone establish personal jurisdiction over a non-resident defendant. Rather, under Rule 4(k) of the Federal Rules of Civil Procedure, “[s]erving a summons or filing a waiver of service establishes personal jurisdiction over a defendant ... who is subject to the jurisdictionof a court of general jurisdiction in the state where the district court is located.” Id. (emphasis added). Service on this non-resident defendant by mail to a Texas address might establish personal jurisdiction only if Hillcrest otherwise were subject to this Court's jurisdiction.

The Court determines whether personal jurisdiction may be exercised “by reference to District of Columbia law.” United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995). “A District of Columbia court may exercise personal jurisdiction over a person domiciled in ... or maintaining ... its principal place of business in, the District of Columbia as to any claim for relief.” D.C.Code § 13–422. Nowhere in the complaint does the plaintiff allege that Hillcrest either is domiciled in or maintains its principal place of business in the District of Columbia. In this circumstance, the Court engages in a two-part inquiry to determine whether it may exercise personal jurisdiction over a non-resident defendant. See GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C.Cir.2000). “A court must first examine whether jurisdiction is applicable under the [District of Columbia's] long-arm statute and then determine whether a finding of jurisdiction satisfies the constitutional requirements of due process.” Id. (citing Ferrara, 54 F.3d at 828).

In relevant part, the District of Columbia long-arm statute provides that:

A District of Columbia court may exercise personal jurisdiction over a person ... as to a claim for relief arising from the person's—

(1) transacting any business in the District of Columbia;

(2) contracting to supply services in the District of Columbia;

(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; [or]

(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia....

D.C.Code § 13–423(a).² The complaint does not allege that Hillcrest transacts any business in or contracts to supply services in the District of Columbia. It merely alleges that, “[u]pon information and belief ... Hillcrest ... is authorized to do business in the District of Columbia.” Compl. ¶ 8. The plaintiff asserts that Hillcrest “causes injury here by an act committed elsewhere,” Pl.'s Supp. Resp. ¶ 4, and suggests that D.C.Code § 13–423(a)(4) therefore applies. This bare assertion is insufficient however, because the plaintiff fails to establish “any of subsection (a)(4)'s so-called ‘plus factors': regularly do[ing] or solicit [ing] business, engag[ing] in any other persistent course of conduct, or deriv [ing] substantial revenue from goods used or consumed, or services rendered, in the District of Columbia.” McIntosh v. Gilley, 753 F.Supp.2d 46, 59 (D.D.C.2010) (quoting D.C.Code § 13–423(a)(4)).

The second component of the analysis turns on whether a defendant's “minimum contacts” with the District of Columbia establish that “the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotation marks and citations omitted). Such minimum contacts must arise from “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the [District of Columbia], thus invoking the benefits and protections of its laws.” Asahi Metal Indus. Co. v. Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). In other words, Hillcrest's “conduct and connection with the [District of Columbia must be] such that [it] should reasonably anticipate being haled into court” in the District of Columbia. World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Missing from the complaint are any factual allegations to show that Hillcrest “ ‘purposefully directed’ any activities at residents of the District of Columbia ... [or] that the defendant has any ‘contacts, ties, or relation’ to the District of Columbia.” Buesgens v....