Sarracco v. Ocwen Loan Servicing, LLC

220 F. Supp. 3d 346, 96 Fed. R. Serv. 3d 687, 2016 WL 7131944, 2016 U.S. Dist. LEXIS 185464
CourtDistrict Court, E.D. New York
DecidedDecember 7, 2016
DocketNo 16-CV-221 (JFB) (GRB)
StatusPublished
Cited by11 cases

This text of 220 F. Supp. 3d 346 (Sarracco v. Ocwen Loan Servicing, LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sarracco v. Ocwen Loan Servicing, LLC, 220 F. Supp. 3d 346, 96 Fed. R. Serv. 3d 687, 2016 WL 7131944, 2016 U.S. Dist. LEXIS 185464 (E.D.N.Y. 2016).

Opinion

MEMORANDUM AND ORDER

Joseph F. Bianco, District Judge:

Background

On January 10, 2006, John Sarracco (“plaintiff’), a New Jersey resident, obtained a loan in the amount of $385,000 from IndyMac Bank, F.S.B., which was secured by a mortgage on property located in Wantage, New Jersey (“the mortgage”). (Def. LSF9’s Mem. Supp. Mot. Trans. Venue, ECF No. 26-1 at 2.) The mortgage was subsequently assigned to OneWest Bank, F.S.B. (“OneWest”), a California entity. (M; Def. Phelan’s Mem. Supp. Mot. Dismiss, ECF No. 23-1 at 1.)

In May 2009, OneWest filed a foreclosure complaint against plaintiff in the Superior Court of New Jersey as a result of plaintiffs failure to pay the mortgage. (LSF9’s Mem. Supp. Mot. Trans. Venue 2.) In June 2013, final judgment was entered against plaintiff. The judgment was later assigned to Ocwen Loan Servicing, LLC (“Ocwen”), a Delaware entity, the following year. (Id.) Ocwen retained Phelan Hallinan Diamond & Jones PC (“Phelan”) to execute the judgment.1 (Judith T. Romano Deck, Mar. 24, 2016, ECF No. 23-2 (“Romano Decl. I”) ¶ 4.) The loan was subsequently sold to LSF9, and the servicing for the loan was transferred to Caliber Home Loans (“Caliber”). (LSF9’s Mem. Supp. Mot. Trans. Venue 2.)

On January 14, 2016, plaintiff commenced this action, asserting claims under the federal Fair Debt Collection Practices Act (“FDCPA”) arising from defendants’ debt collection activities.2 (Compl., ECF No. 1 at 1.)

[351]*351On March 24, 2016, defendant Phelan, a law firm domiciled and with its principal place of business in New Jersey, moved to dismiss the claim against it for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). (Phelan’s Mem. Supp. Mot. Dismiss 3, 9.) Phelan also requested the Court award Phelan its legal fees and costs, alleging plaintiffs Complaint was frivolous and filed in bad faith. (Phelan’s Mot. Sanctions, ECF No. 24; Phelan’s Mem. Supp. Mot. Sanctions, ECF No. 24-1 at 1.)

On March 26, 2016, defendant LSF9 Master Participation Trust (“LSF9”) moved to transfer the venue of this action to the United States District Court for the District of New Jersey (“District of New Jersey”) pursuant to 28 U.S.C. § 1404(a), arguing that no connection exists between the parties or the allegations in this case and the State of New York, that the District of New Jersey is the locus of the operative facts of the case, and that the District of New Jersey is a more convenient forum. (LSF9’s Mem. Supp. Mot. Trans, Venue 1, 4.)

For the reasons stated below, the Court concludes that it does not have personal jurisdiction over Phelan. However, the Court does not grant Phelan’s motion to dismiss. Instead, the Court transfers the instant case to the District of New Jersey under the authority of 28 U.S.C. §§ 1404(a) and 1406(a). Further, the Court denies Phelan’s motion to impose sanctions on plaintiff.

Discussion

I. Personal Jurisdiction Over Defendant Phelan

A. Applicable Law

1, Standard for a Rule 12(b)(2) Motion

On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the court has jurisdiction over the defendant. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 660, 566 (2d Cir. 1996). However, prior to discovery, the plaintiff “need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials” to defeat the motion. Welinsky v. Resort of the World D.N.V., 839 F.2d 928, 930 (2d Cir. 1988) (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)). Furthermore, in considering a Rule 12(b)(2) motion, the pleadings and affidavits are to be construed in the light most favorable to plaintiff, the non-moving party, and all doubts are to be resolved in plaintiffs favor. DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 85 (2d Cir. 2001). However, a plaintiffs “unsupported allegations” can be rebutted by “direct, highly specific, testimonial evidence .... ” Schenker v. Assicurazioni Genereali S.p.A., Consol., No. 98 Civ. 9186 (MBM), 2002 WL 1560788, at *3 (S.D.N.Y. July 15, 2002).

2. C.P.L.R. § 301 and § 302

As a threshold matter, “[i]n a federal question case, where the defendant resides outside the forum state, federal courts apply the forum state’s personal jurisdiction rules if the applicable federal statute does not provide for national service of process.” Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 22 (2d Cir. 2004) (citation omitted). Because the FDCPA does not provide for national service of process, New York’s Civil Practice Law and Rules (“C.P.L.R.”) §§ 301 and 302 govern the instant action. See id.; Fort Knox Music Inc. v. Baptiste, 203 F.3d 193, 196 (2d Cir. 2000).3

Under N.Y. C.P.L.R. § 301, New York’s general jurisdiction statute, a court [352]*352may exercise general personal jurisdiction over a non-domiciliary corporation that is “doing business” in New York. See McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, 419 N.E.2d 321 (1981). The “doing business” standard is “stringent, because a defendant who is found to be doing business in New York in a permanent and continuous manner may be sued in New York on causes of action wholly unrelated to acts done in New York.” Overseas Media, Inc. v. Skvortsov, 407 F.Supp.2d 563, 567-68 (S.D.N.Y. 2006). A corporation is “doing business” in New York “if it does business in New York ‘not occasionally or casually, but with a fair measure of permanence and continuity.’ ” Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir. 1985) (quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915, (1917)); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d Cir. 2000) (quoting Landoil Resources Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir. 1990)).

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220 F. Supp. 3d 346, 96 Fed. R. Serv. 3d 687, 2016 WL 7131944, 2016 U.S. Dist. LEXIS 185464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sarracco-v-ocwen-loan-servicing-llc-nyed-2016.