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Securities and Exchange Commission v. Brightpoint

STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


December 21, 2011

SECURITIES AND EXCHANGE COMMISSION, PLAINTIFF,
v.
BRIGHTPOINT, INC., AMERICAN INTERNATIONAL GROUP, INC., PHILLIP BOUNSALL, JOHN DELANEY, AND TIMOTHY HARCHARIK, DEFENDANTS.

The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge:

OPINION & ORDER

Before the Court is a motion to retain venue in the Southern District of New York brought by Defendant Timothy Harcharik ("Harcharik"). Plaintiff Securities and Exchange Commission ("SEC") seeks to enforce a $50,000 civil penalty imposed by this Court on Harcharik. Harcharik resides in the Southern District of Indiana, and the SEC has registered this Court's judgment there. The SEC plans to seek an installment order in that court. Harcharik requests that the SEC's enforcement proceedings be heard in New York. For the reasons set forth below, Defendant's motion to retain venue is DENIED.

Discussion

Proceedings to enforce this Court's judgment imposing a civil penalty on Harcharik are brought under the Federal Debt Collection Procedures Act ("FDCPA"), 28 U.S.C. §§ 3001 et seq. Subchapter C of the FDCPA, 28 U.S.C. §§ 3201 et seq., provides the postjudgment remedies available to the United States to effect the collection of a debt and includes the issuance of an installment order. 28 U.S.C. § 3204. Venue for proceedings under the FDCPA is set by 28 U.S.C. § 3004(b):

(b) Nationwide enforcement.--(1) Except as provided in paragraph (2)--

(A) any writ, order, judgment, or other process, including a summons and complaint, filed under this chapter may be served in any State; and

(B) such writ, order, or judgment may be enforced by the court issuing the writ, order, or process, regardless of where the person is served with the writ, order, or process.

(2) If the debtor so requests, within 20 days after receiving the notice described in section 3101(d) or 3202(b), the action or proceeding in which the writ, order, or judgment was issued shall be transferred to the district court for the district in which the debtor resides.

28 U.S.C. § 3004(b).

Venue under the FDCPA is proper in the Southern District of New York, or the Southern District of Indiana, or any other federal court. Although a debtor has the right to request that the action "be transferred to the district court for the district in which the debtor resides," the statute does not require a court to transfer to any forum of the defendant's choice.*fn1

Conclusion

For the foregoing reasons, the motion to retain venue here is DENIED, and the Clerk of the Court is directed to close this matter and remove it from my docket.

SO ORDERED.


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