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Andrew Eric Lamer v. Trans Union

March 5, 2012

ANDREW ERIC LAMER, PLAINTIFF,
v.
TRANS UNION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gene E.K. Pratter, J.,

MEMORANDUM

Plaintiff Andrew Lamer alleges that the Defendants violated the Fair Credit Reporting Act and the Fair Debt Collections Practices Act. Defendant Pinnacle Credit Services, LLC filed a motion to dismiss the claims against it pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the Court denies the motion.

I. FACTUAL BACKGROUND

Mr. Lamer brings this action against Trans Union, LLC, Experian Information Solutions, Inc., First Premier Bank, Pinnacle Credit Services, LLC, Arrow Financial Services, LLC, Cavalry Portfolio Services, LLC, and Midland Credit Management, Inc. for various violations of the Fair Credit Reporting Act ("FCRA") and the Fair Debt Collection Practices Act ("FDCPA").*fn1 Mr. Lamer alleges that as a result of a purported identity theft, the Defendants have been reporting to third parties derogatory and inaccurate statements about him and information relating to accounts opened with a variety of institutions.*fn2 Mr. Lamer claims that this inaccurate information reflects poorly on his credit repayment history, his financial responsibility as a debtor, and his credit-worthiness. Despite Mr. Lamer's oral and written communications to Experian, Equifax, and Trans Union representatives disputing the purported inaccurately reported information, he alleges that the companies continued to report the information to third parties and neglected to investigate the merits of his claims. Likewise, Mr. Lamer complains that First Premier, Pinnacle, Arrow, Cavalry, and Midland failed to conduct timely and reasonable investigations of his disputes or discontinue reporting inaccurate information to third parties after being contacted by both him and the credit reporting agencies.

On April 29, 2011, Mr. Lamer filed a Complaint against the defendants.*fn3 Pinnacle answered Mr. Lamer's Complaint on June 21, 2011.*fn4 After Defendant First Premier filed a motion to dismiss the original complaint on July 25, 2011, Mr. Lamer filed an Amended Complaint on August 10, 2011. The Amended Complaint contains three counts. Count I alleges Experian, Equifax, and Trans Union committed a variety of willful and negligent violations of the FCRA. Count II alleges further willful and negligent violations of the FCRA by First Premier, Pinnacle, Arrow, Cavalry and Midland. Count III asserts that Pinnacle, Arrow, Cavalry and Midland committed various violations of the FDCPA.

On September 12, 2011, Pinnacle filed the instant Motion to Dismiss (Doc. No. 30) for lack of personal jurisdiction and failure to state a claim.

II. DISCUSSION

A. Personal Jurisdiction

Federal Rule of Civil Procedure 4(e) allows a district court to exercise personal jurisdiction over a non-resident to the extent allowed by the law of the state in which it sits. See Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984). Pennsylvania's long-arm statute provides that a court may exercise personal jurisdiction over non-resident defendants "to the constitutional limits of the due process clause of the Fourteenth Amendment." Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001) (citation omitted) (interpreting 42 Pa. Cons. Stat. Ann. § 5322(b)).

Due process requires that (1) the defendant have "minimum contacts" with the forum state, and (2) the exercise of jurisdiction comports with "traditional notions of fair play and substantial justice." Remick, 238 F.3d at 255 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). "[M]inimum contacts must have a basis in 'some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'" Remick, 238 F.3d at 255 (quoting Asahi Metal Indus. Co., Ltd. v. Superior Court of California, 480 U.S. 102, 109 (1987) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985))).

A federal court may exercise personal jurisdiction over a defendant in one of two ways. General personal jurisdiction is appropriate when a cause of action "arises from the defendant's non-forum related activities," and the defendant's contacts with the forum are continuous and systematic. Vetrotex Certainteed Corp. v. Consol. Fiber Glass Prods. Co., 75 F.3d 147, 151 n.3 (3d Cir. 1995); see also Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 368 n.1 (3d Cir. 2002) (noting distinction); Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414--416 (1984)). By contrast, specific personal jurisdiction can be invoked when a cause of action arises from the defendant's forum-related activities. Vetrotex, 75 F.3d at 151.

A party waives the defense of lack of personal jurisdiction under Rule 12(b)(2) if it "fail[s] to either: (i) make it by motion . . . or (ii) include it in a responsive pleading. . . ." Fed. R. Civ. P. 12(h)(1)(B); see also Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 704 (1982) ("A defense of lack of jurisdiction over the person . . . is waived if not timely raised in the answer or a responsive pleading.") Where a defendant files an answer and fails to raise the defense of lack of personal jurisdiction, "[t]he filing of an amended complaint will not revive the right to present by motion defenses that were available but were not asserted in timely fashion prior to the amendment of the pleading" absent new matter in the amended complaint. 5C Charles Alan Wright, et al., Federal Practice & Procedure § 1388 (3d ed. updated 2011); Jimenez v. Rosenbaum-Cunningham, Inc., No. 07-1066, 2010 WL 1303449, at *5 n.5 (E.D. Pa. Mar. 31, 2010) ("The filing of [an] Amended Complaint d[oes] not . . . revive her right to assert this defense once she failed to raise it in her first responsive pleading."); Abady v. Macaluso, 90 F.R.D. 690, 692 (E.D. Pa. 1981) ("[A] party may not raise a personal jurisdictional objection to an amended complaint if she waived that objection to the initial complaint."); Rowley v. McMillan, 502 F.2d 1326, 1332-33 (4th Cir. 1974) ("An unasserted defense available at the time of response to an initial pleading may not be asserted when the initial pleading is amended..").

Here, Pinnacle answered Mr. Lamer's original complaint and did not make any objection to the Court's exercise of personal jurisdiction. In fact, in response to paragraph 9 of Mr. Lamer's original complaint, Pinnacle admitted that it "regularly conducts business in Philadelphia, Pennsylvania," an explicit acknowledgment of the Court's general jurisdiction over Pinnacle. Pinnacle did not make any attempt to amend its Answer after it was filed to include such an objection, and took no action when co-Defendant First Premier filed a motion to dismiss. Therefore, the defense of lack of personal jurisdiction was waived by Pinnacle when it failed to include it as an affirmative defense in its Answer to the original complaint. Fed. ...


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