United States District Court, W.D. New York
Decided: April 30, 2014
For Donald McQueen, Plaintiff: Seth Andrews, Law Offices of Kenneth Hiller, PPLC, Amherst, NY.
For Lee Huddleston, Attorney at Law, doing business as Huddleston and Huddleston, Defendant: Lee Huddleston, LEAD ATTORNEY, Huddleston & Huddleston, Bowling Green, KY.
JOHN T. CURTIN, United States District Judge.
In this action, filed in March 2013, plaintiff Donald McQueen seeks relief pursuant to various provisions of the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § § 1692 et seq., against attorney Lee Huddleston, doing business as Huddleston and Huddleston, Attorneys at Law, based on allegations involving defendant's attempts to collect on a debt that plaintiff contends was satisfied in 2006. See Item 1. In lieu of answering the complaint, defendant--appearing pro se --moved to dismiss the complaint on various grounds, including improper venue, lack of personal jurisdiction, insufficient process, insufficient service, and failure to join a necessary party. Item 6.
By order entered October 10, 2013 (Item 11), this court denied defendant's motion to dismiss in its entirety, and granted plaintiff's cross-motion for leave to amend the complaint in order to name the proper defendant. McQueen v. Huddleston and Huddleston, 2013 WL 5592804 (W.D.N.Y. Oct. 10, 2013). The court directed plaintiff to file the amended complaint within thirty days, and directed defendant to file a responsive pleading in accordance with the Federal Rules of Civil Procedure. See [WL] at *6.
Plaintiff filed the amended complaint on November 11, 2013 (Item 12). On December 5, 2013 (three days after the due date for filing a responsive pleading; see Fed.R.Civ.P. 12(a)(1)(A)(i) (" A defendant must serve an answer ... within 21 days after being served with the summons and complaint ...." )), defendant filed a singular document entitled " Defendant's Motion to Dismiss for Lack of Personal Jurisdiction and Answer" consisting of an unsworn statement of " the correct facts" based on knowledge and information " from speaking with those who are directly involved with the collection efforts" (Item 13, p. 1); a loosely-constructed memorandum of law pertaining to the requirements for exercising personal jurisdiction over a defendant ( id. at 3-5); and an answer to the amended complaint ( id. at 5-6). Notwithstanding both the untimely filing and the procedurally improper hybrid composition of this document, see Rule 7 of the Local Rules of Civil Procedure for the Western District of New York (requiring separate notice of motion, memorandum of law, and affidavit), the court has considered the matters set forth therein, and rules as follows.
To the extent the document purports to present a motion to dismiss the amended complaint for lack of personal jurisdiction, the motion is denied. It is the plaintiff's burden to establish that the court has personal jurisdiction over the defendant. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). Prior to discovery, plaintiff satisfies this burden by " 'pleading in good faith, legally sufficient allegations of jurisdiction.'" Dorchester Financial Securities, Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013) (quoting Ball v. Metallurgie Hoboken--Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990). At this point, " the plaintiff need persuade the court only that its factual allegations constitute a prima facie showing of jurisdiction." Ball, 902 F.2d at 197; see also Weinar v. Lex, 2014 WL 325698, at *2 (S.D.N.Y. Jan. 23, 2014). This showing may be made through affidavits and supporting materials " containing an averment of facts that, if credited, would suffice to establish jurisdiction over
the defendant." S. New Eng. Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 138 (2d Cir. 2010); see also AEP--PRI Inc. v. Galtronics Corp. Ltd., 2013 WL ...