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Victor Gulley v. Brian T. Moynihan

June 17, 2011

VICTOR GULLEY, PLAINTIFF,
v.
BRIAN T. MOYNIHAN, AND/OR HIS SUCCESSOR, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS PRES/CEO OF BANK OF AMERICA, IRA T. NEVEL, AND/OR HIS SUCCESSOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS PRES/PRINCIPAL OF LAW OFFICES OF IRA T. NEVEL, LLC, BANK OF AMERICA, NA AND KATHY REPKA AND/OR HER SUCCESSOR, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS ATTORNEY FOR BANK OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Judge Ronald A. Guzman

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Victor Gulley filed suit against Brian T. Moynihan, Bank of America, Ira T. Nevel, the Law Offices of Ira T. Nevel, LLC (collectively referred to herein as "Ira T. Nevel and his Law Offices") and Kathy Repka for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. and the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. Defendants Moynihan and Repka moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(2) and all defendants moved to dismiss pursuant to Rule 12(b)(6). For the reasons provided in this Memorandum and Opinion, the Court grants in part and denies in part Moynihan, Repka and Bank of America's motion to dismiss and denies Ira T. Nevel and his Law Offices' motion to dismiss.

Facts

On October 20, 2008, plaintiff received a summons from Ira T. Nevel and his Law Offices on behalf of Bank of America stating that plaintiff had an outstanding debt with Bank of America. (Compl. ¶ 8.)*fn1 Plaintiff had already seen the outstanding debt on his Experian and Equifax credit reports, and had "requested confirmation/disputed" the debt with both credit bureaus. (Id. at 7-8.) On October 29, 2008, plaintiff sent a letter to Bank of America and Nevel asking them to verify and/or provide proof of the alleged debt. (Id. ¶¶ 11-12.) Neither party ever verified the debt. (Id. at 7, ¶ 13.) Thereafter, Ira T. Nevel and his Law Offices proceeded with collection practices on behalf of Bank of America. (Id. ¶ 14.)

Also in October 2008, plaintiff sent Bank of America a letter advising it not to call or contact any parties regarding the debt. (Id. ¶ 10.) After sending the letter, plaintiff alleges he received seventy-one phone calls from defendants Brian Moynihan and Bank of America. (Id. ¶ 10.) Plaintiff alleges he also received phone calls from an agent of Brian Moynihan and Bank of America on or about July 9, 2008 and December 30, 2009. (Id. at 3, ¶ 9.)

Discussion

In his ten-count complaint, plaintiff alleges that Bank of America, Brian T. Moynihan and Ira T. Nevel and his Law Offices are liable for violations of the FDCPA (Counts I-III). He further alleges that Bank of America and Moynihan are liable for violations of the FCRA (Counts IV-X), and that Kathy Repka is liable for fraud and/or perjury (Compl. ¶ 15). Part I of this Opinion will address defendants Moynihan and Repka's motion to dismiss for lack of personal jurisdiction. Part II of this Opinion will address the remaining defendants' motions to dismiss for failure to state a claim.

I. Personal Jurisdiction

When deciding a Rule 12(b)(2) motion to dismiss, "all well-pleaded jurisdictional allegations in the complaint are accepted as true unless controverted by affidavit." Travelers Cas. & Sur. Co. v. Interclaim (Bermuda) Ltd., 304 F. Supp. 2d 1018, 1021 (N.D. Ill. 2004). "Any conflicts in the pleadings and affidavits are to be resolved in the plaintiffs' favor, but the court accepts as true any facts contained in the defendants' affidavits that remain unrefuted by the plaintiffs." Interlease Aviation Investors II (Aloha) L.L.C. v. Vanguard Airlines, Inc., 262 F. Supp. 2d 898, 905 (N.D. Ill. 2003); see RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1275 (7th Cir. 1997). The plaintiff bears the burden of proving the jurisdictional requirements are met. RAR, Inc., 107 F.3d at 1276.

This Court may exercise personal jurisdiction over Moynihan if permitted by the Illinois long-arm statute. See Fed. R. Civ. P. 4(k)(1)(A) (providing that service is effective to establish jurisdiction over defendants "who is subject to the jurisdiction of a court . . . in the state in which the district court is located"). A state's exercise of personal jurisdiction is also subject to the demands of the Fourteenth Amendment's due process clause. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Because the Illinois long-arm statute "permits its courts to exercise jurisdiction on any bases permitted by the Illinois and United States Constitution," the Seventh Circuit has found that the state statutory and federal constitutional requirements merge into one federal due process inquiry. See Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir. 2010) (citing 735 Ill. Comp. Stat. 5/2--209(c)). Thus, the ultimate constitutional question is whether the defendant had "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Int'l Shoe Co., 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).

This inquiry can be satisfied by demonstrating either "general" or "specific" personal jurisdiction. Id. General jurisdiction exists when the defendant has "continuous and systematic" contacts with the forum state, and as such, can be sued there for any cause of action arising in any place. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 787 (7th Cir. 2003). Specific jurisdiction exists when the plaintiff shows that his claims against defendant arise out of defendant's constitutionally sufficient contacts with the state. Id. at 780. The most important factor in assessing specific jurisdiction is foreseeability, that is, whether the defendant could have anticipated being haled into the courts of the forum state. See id.

A. Brian T. Moynihan

Because there is no evidence or argument that Moynihan has continuous business contacts with Illinois, the plaintiff must establish specific jurisdiction. Although plaintiff admits he has never had any business affiliation, contract or relationship with Moynihan (see Compl. at 7), he argues the following with regard to jurisdiction: (1) Moynihan is the president of Bank of America (Compl. ¶ 5); (2) an agent of Moynihan's and Bank of America called him on July 9, 2008 and December 30, 2009 (Id. ¶ 9; see id. at 3); and (3) Moynihan and Bank of America have made seventy-one calls to him since receiving notice on October 8, 2008 from plaintiff stating not to call or contact any parties regarding his debt (Id. ¶ 10). Moynihan responds by establishing that he is a resident of Massachusetts and was not president of Bank of America until January 1, 2010, which is after some of the alleged phone calls took place. (Moynihan's Mem. Supp. Mot. Dismiss Ex. A, Gerrish Dela. at 1-2, Aug. 31, 2010.)

Based on the evidence in this case, the Court finds that Moynihan does not have sufficient "minimum contacts" with Illinois to the extent he could reasonably anticipate being haled into court here. The only evidence of any contact between plaintiff and Moynihan in Illinois are the alleged phone calls from Moynihan and Bank of America's agent. First, some of these alleged calls occurred before Moynihan was president of Bank of America. (Compl. ΒΆ 9, at 3.) Second, in support of these allegations plaintiff attaches a phone log that shows calls from an "800" number to a "773" number, but the owner of either number is never identified. (Id. Ex. B., Phone Log at 1.) In other words, ...


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