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Eades v. Kennedy, LEVERE C. PIKE, JR., Plaintiffs, v. KENNEDY, PC. LAW OFFICES

United States District Court, W.D. New York

December 3, 2013

JONI EADES, LEVERE C. PIKE, JR., Plaintiffs,
v.
KENNEDY, PC. LAW OFFICES, Defendant

Page 252

For Joni Eades, Levere C. Pike, Jr., Plaintiffs: Seth Andrews, LEAD ATTORNEY, Law Offices of Kenneth Hiller, PPLC, Amherst, NY.

For Kennedy, PC. Law Offices, Defendant: John H. Somoza, LEAD ATTORNEY, Kira Tsiring, Melito & Adolfsen, P.C., New York, NY.

OPINION

Page 253

DAVID G. LARIMER, United States District Judge.

DECISION AND ORDER

This matter was brought by consumers Joni Eades (" Eades" ) and Levere C. Pike, Jr. (" Pike" ), to challenge certain debt collection actions by the defendant. Defendant Kennedy, PC Law Offices (" Kennedy" ) is a law firm which engages in, among other things, debt collection.

Kennedy allegedly attempted to collect a debt from Eades and Pike via at least one letter and one telephone call, and through a lawsuit that was filed in Pennsylvania. Plaintiffs' complaint alleges that these actions violated the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692 et seq. Kennedy now moves to dismiss the complaint for failure to state a claim (Dkt. #6), and plaintiffs have cross moved to amend the complaint (Dkt. #11) to amplify the alleged facts and add a cause of action under the Nursing Home Reform Act, 42 U.S.C. § § 1395i-3 et seq. (" NHRA" ). For the reasons set forth below, the plaintiffs' cross motion to amend is granted,[1] and defendant's motion to dismiss is granted.

DISCUSSION

I. Whether Jurisdiction is Established and Venue is Proper

Initially, I find that this Court lacks jurisdiction over this action. Although the parties are diverse, the amount-in-controversy prong for supplemental

Page 254

jurisdiction is lacking. As such, the sole claimed basis for jurisdiction is New York's long-arm statute, which provides that: " a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent," (1) transacts business with the state or contracts so supply goods or services there; (2) commits a tortious act within the state, except for defamation; (3) commits a tortious act outside of the state to a resident, except for defamation, and regularly does or solicits business within the state, derives substantial revenue from goods used or services rendered in the state, or alternatively, expects or should reasonably expect its acts to have consequences within the state and derives substantial revenue from interstate or international commerce; or (4) owns, uses or possessed real property within the state. N.Y. C.P.L.R. § 302(a). Plaintiffs, who do not allege that Kennedy conducts business or supplies goods or services in New York, that it owns any property here, that it has engaged in an ongoing course of conduct within the state (as opposed to a single letter, service of process for the Pennsylvania lawsuit, and a single phone call), or that it has committed a tort (as opposed to a statutory violation), have failed to allege facts sufficient to establish that Kennedy has sufficient ties to New York for long-arm jurisdiction to apply. As such, plaintiffs have failed to establish that this Court has jurisdiction over their claims.

Even assuming arguendo that the Court did have jurisdiction over this matter, I further observe, as discussed below, that plaintiffs have ...


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