when the defendant would be amenable to service under the long-arm statute of the state in which the district court sits. Fed. R. Civ. P. 4(k)(1); Marais, 1995 U.S. Dist. LEXIS 15106, 1995 WL 608573 at *5.
Because the FDCPA does not authorize nationwide service of process, Rapid's amenability to service is governed by the Illinois long-arm statute. Under 735 ILCS 5/2-209(a) (1992), a defendant "submits" to the jurisdiction of Illinois courts if he commits any one of a series of specified acts.
Vlasak argues that Rapid is subject to the jurisdiction of Illinois courts under two provisions of the statute. First, Vlasak contends that by mailing four letters and placing three telephone calls into Illinois, Rapid "transacted business" in Illinois pursuant to § 2-209(a)(1). Second, Vlasak asserts that the letters and phone calls also constitute a "tortious act" under § 2-209(a)(2). In response, Rapid argues that it did not conduct any business in Illinois because all of its contractual obligations with creditors were created in Arizona. Rapid also maintains that its attempts to collect from Vlasak do not constitute independent "transactions" under the long-arm statute. Rapid further contends that it did not commit a "tortious act" in the State of Illinois because "an FDCPA claim is not a tort but is a statutory creation involving strict liability analyzed under an 'unsophisticated consumer' standard." Memorandum of Law in Support of Defendants' Motion to Dismiss for Lack of Personal Jurisdiction at 4.
While we express no opinion as to whether Rapid transacted business in Illinois, Rapid clearly committed a "tortious act" as defined by the long-arm statute. The phrase "tortious act" is given a broad construction under Illinois law. For jurisdictional purposes the phrase is not limited to acts which create common law liability; instead, "it encompasses any act that constitutes a breach of duty to another imposed by law." Florendo v. Pan Hemisphere Transp., Inc., 419 F. Supp. 16, 17 (N.D. Ill. 1976) (Grady, J.); Estate of Wrigley, 104 Ill. App. 3d 1008, 433 N.E.2d 995, 1004, 60 Ill. Dec. 757 (Ill. App. Ct. 1982) ("A tortious act includes any act committed within Illinois which involves a breach of a duty owed to another and makes the person committing the act liable to the other for damages."); see also In re Marriage of Highsmith, 111 Ill. 2d 69, 488 N.E.2d 1000, 1003, 94 Ill. Dec. 753 (Ill. 1986) (reaffirming that a breach of a duty imposed by law constitutes a "tortious act" under the long-arm statute); International Bus. Mach. Corp. v. Martin Property & Cas. Ins. Agency, Inc., 281 Ill. App. 3d 854, 666 N.E.2d 866, 869, 217 Ill. Dec. 197 (Ill. App. Ct. 1996) (noting that several courts have held that "tortious act" should be given a liberal definition). A violation of the FDCPA unquestionably constitutes a breach of a legal duty, see, e.g., 15 U.S.C. §§ 1692b-1692h (imposing a series of behavioral obligations on debt collectors), and collectors who fail to comply with the provisions of the Act may be liable for damages and attorney fees. 15 U.S.C. § 1692k. As a result, we have no difficulty concluding that the acts alleged in the complaint are "tortious" under § 2-209(a)(2). See also Brujis, 876 F. Supp. at 977 (holding that the defendants fell within the ambit of § 2-209 because "the tortious acts they allegedly committed in Illinois -- authorizing and directing the use of the misleading ['United States Credit Bureau'] name in violation of the FDCPA -- are sufficient to confer jurisdiction"); Bailey v. Clegg, Brush & Assocs., Inc., 1991 U.S. Dist. LEXIS 21591, No. 90 CV 2702, 1991 WL 143461, at *2 (N.D. Ga. 1991) (finding that alleged violations of the FDCPA "are analogous to the commission of a tortious act" under the Georgia long-arm statute).
Moreover, even if we were mistaken in our determination that Rapid committed a "tortious act," jurisdiction would still be proper under the catch-all provision of the Illinois long-arm statute. Under 735 ILCS 5/2-209(c) (1992) -- a provision inexplicably ignored by the plaintiff in her brief -- Illinois courts may exercise jurisdiction on any basis permitted by the United States and Illinois Constitutions.
Section 2-209(c) thus authorizes personal jurisdiction to the constitutional limit, collapsing the statutory analysis into a due process inquiry. RAR, 107 F.3d at 1276; Dehmlow v. Austin Fireworks, 963 F.2d 941, 945 (7th Cir. 1992); see also Fluid Management Ltd. Partnership v. H.E.R.O. Indus., Ltd., 1997 U.S. Dist. LEXIS 2728, No. 95 C 5604, 1997 WL 112839, at *5 (N.D. Ill. Mar. 11, 1997) (explaining that "even absent the commission of a tort in Illinois . . . personal jurisdiction can still be obtained over Defendants if the constitutional due process requirements are satisfied"); Rao Design Eng'g, Inc. v. Wisconsin Engraving Co., No. 96 C 3945, 1996 WL 535328, at *3 (N.D. Ill. Sept. 17, 1996) (Grady, J.) (recognizing that § 2-209(c) "allows [a] court to find jurisdiction without reference to any of the enumerated acts in the long-arm statute"); Dickie v. City of Tomah, 782 F. Supp. 370, 372 (N.D. Ill. 1991) (stating that § 2-209(c) "obviates the necessity of the defendant's engaging in a statutorily enumerated act in order to establish jurisdiction over it"). Vlasak is therefore entitled to a federal forum so long as an Illinois court's assertion of personal jurisdiction over Rapid would be compatible with the Due Process Clause of the Fourteenth Amendment.
This, of course, brings us back to the "minimum contacts" analysis of International Shoe and its progeny. Rapid contends that it should not be haled into court in Illinois because it did not "purposefully avail" itself of the privilege of conducting activities here. Rapid argues that the debt allegedly owed by Vlasak stems from an apartment lease in Arizona, and that Rapid only initiated communication with Vlasak in Illinois because she moved there. As a consequence, Rapid asserts, it did not "purposefully" establish contacts with Illinois. Rapid also emphasizes that it is a small, uninsured collection agency that conducts nearly all of its business in Arizona. According to Rapid, requiring it to litigate approximately 2,000 miles away from its principal place of business would impose a severe financial burden and would be contrary to the notion of "fair play and substantial justice." For two reasons, however, we find that an Illinois court could exercise personal jurisdiction over Rapid within constitutional bounds.
First, based on its phone calls and letters to Vlasak, Rapid had fair warning that it might be called before an Illinois court. The main factor in the minimum contacts inquiry is not physical presence in the forum state but rather "foreseeability." Heritage House Restaurants, Inc. v. Continental Funding Group, Inc., 906 F.2d 276, 283 (7th Cir. 1990); Mors v. Williams, 791 F. Supp. 739, 742 (N.D. Ill. 1992). Simply stated, the defendant's conduct and connection with the forum state must be such that it should reasonably anticipate being haled into court there. FMC v. Varonos, 892 F.2d 1308, 1313 (7th Cir. 1990) (citing Burger King, 471 U.S. at 474); S.T.R. Indus., Inc. v. Palmer Indus., Inc., 1996 U.S. Dist. LEXIS 18257, No. 96 C 4251, 1996 WL 717468, at *2 (N.D. Ill. Dec. 9, 1996) (Grady, J.). In this case, Rapid's connections fit the bill. Vlasak's jurisdictional allegations are not premised on a series of attenuated contacts between Rapid and the state of Illinois. Rather, the complaint alleges that Rapid knowingly telephoned and sent dunning letters to Vlasak in Illinois in an attempt to collect an outstanding debt.
Far from being random or fortuitous, these contacts are the very basis of Vlasak's claims for relief under the FDCPA. See Paradise v. Robinson & Hoover, 883 F. Supp. 521, 525 (D. Nev. 1995); Russey v. Rankin, 837 F. Supp. 1103, 1105 (D.N.M. 1993); Bailey, 1991 U.S. Dist. LEXIS 21591, 1991 WL 143461 at *2 (all holding that the state in which a plaintiff resides may exercise personal jurisdiction over a defendant when the defendant's communications with the plaintiff "are the precise subject matter of [an] action pursuant to the FDCPA"); see generally Heritage House, 906 F.2d at 283-84 (commenting that a defendant who "reaches out" through telephone and mail contacts should not be able to avoid jurisdiction simply because it has not set foot in a particular state). It can hardly be gainsaid that Rapid knew or should have known that it might be held accountable in Illinois for its debt collection activities there. See Sluys v. Hand, 831 F. Supp. 321, 325 (S.D.N.Y. 1993) ("Defendant knew or reasonably should have known that by sending the debt collection letters into New York, he was running the risk of suit in New York in connection with that activity.").
Second, that litigation would be less expensive for Rapid if conducted in Arizona does not make Illinois an improper forum. Inconvenience is not a synonym for unconstitutionality. As the Seventh Circuit explained in United Rope, "whether the forum within the United States is convenient for the defendant is a question of venue and discretionary doctrines allowing transfers; it has nothing to do with judicial power." 930 F.2d at 534; see also Lisak, 834 F.2d at 671 (stating that a defendant "may not demand that the court applying the law of the United States be conveniently located"); Fitzsimmons, 589 F.2d at 333 (commenting that the jurisdictional requirement of "fairness" is related "to the fairness of the exercise of power by a particular sovereign, not the fairness of imposing the burdens of litigating in a distant forum"). Thus, while it remains true that a defendant may not be summoned into court if he presents a "compelling case" that other considerations make the exercise of jurisdiction unreasonable, "most such considerations usually may be accommodated through means short of finding jurisdiction unconstitutional." Burger King, 471 U.S. at 477. Under 28 U.S.C. § 1404(a) (1994),
for example, a court may transfer a case to another forum for the convenience of the parties and their witnesses. See id. (specifically noting that a defendant may seek a change of venue if he would otherwise be substantially inconvenienced); see generally SRAM Corp. v. Sunrace Roots Enter. Co., 953 F. Supp. 257, 259 (N.D. Ill. 1997) (observing that the propriety of a transfer under § 1404(a) depends on the plaintiff's choice of forum, the site of material events, the availability of evidence in each forum, and the convenience to the parties of litigating in the respective forums). The difficulties Rapid may encounter if required to litigate in Illinois should not be taken lightly. Nevertheless, those difficulties do not justify an outright dismissal of Vlasak's complaint.
Furthermore, Rapid's professed hardship is only half the equation. While the burden placed on the defendant is always a primary concern, that burden must be considered in light of the plaintiff's interest in obtaining convenient and effective relief. World-Wide Volkswagen, 444 U.S. at 292; see also Burger King, 471 U.S. at 477 (observing that considerations such as the plaintiff's interest in obtaining relief "sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required"). When an individual receives calls or letters from a distant collection agency -- and when those calls or letters are allegedly illegal under the FDCPA -- it makes sense to permit that individual to file suit where he receives the communications. Otherwise, collection agencies "could invoke the protection of distance and send violative letters with relative impunity, at least so far as less well-funded parties are concerned." Sluys, 831 F. Supp. at 324; see also Lachman v. Bank of La., 510 F. Supp. 753, 758 (N.D. Ohio 1981) (emphasizing that the purpose of the FDCPA and other consumer protection legislation "would be frustrated if consumers had to travel long distances to file and prosecute lawsuits against banks and credit card issuers"). Indeed, Congress expressly recognized that debt collectors may obtain an unfair advantage by conducting legal proceedings "in courts which are so distant or inconvenient that consumers are unable to appear." S. Rep. No. 95-382, at 5 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1699; see also 15 U.S.C. § 1692i(a) (requiring debt collectors to file suit where the consumer resides, where the underlying contract was signed, or where the real property at issue is located). Viewed in this light, Rapid's argument that shuttling back and forth between Arizona and Illinois would be costly is something of a double-edged sword: Any inconvenience suffered by Rapid if forced to litigate in Illinois would presumably be just as acute for Vlasak were she required to litigate in Arizona. Without an Illinois forum, Vlasak might be precluded altogether from maintaining her case.
For the reasons outlined in this opinion, Rapid's motion to dismiss Vlasak's complaint for lack of personal jurisdiction is denied.
DATED: May 7, 1997
John F. Grady, United States District Judge