Robinson v. LVNV Funding LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION

Samuel K Robinson, )

)

Plaintiff, ) Civil Action No. 6:20-cv-4131-TMC

)

vs. )

)

LVNV Funding LLC and Resurgent ) ORDER

Capital Services, )

)

Defendants. )

_________________________________)

Plaintiff Samuel K. Robinson (“Plaintiff”), proceeding pro se, brings this action against

Defendants LVNV Funding LLC (“LVNV”) and Resurgent Capital Services (“Resurgent”)

(collectively, “Defendants”) for alleged violations of the Fair Debt Collections Practices Act

(“FDCPA”)1 and the Fair Credit Reporting Act (“FCRA”)2. (ECF No. 1). In accordance with 28

U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this matter was referred to a

magistrate judge for pretrial handling. Now before the court is the magistrate judge’s Report and

Recommendation (“Report”), recommending the court transfer this case to the United States

District Court for the Western District of Tennessee. (ECF No. 21). Plaintiff filed objections to

the Report, (ECF No. 25), and this matter is now ripe for review.

BACKGROUND

In the Report, the magistrate judge sets forth the relevant facts and legal standards, which

are incorporated herein by reference. See (ECF No. 21). Briefly, Plaintiff asserts that Defendants

violated the FDCPA and FCRA by attempting to collect from Plaintiff a debt Plaintiff does not

1 15 U.S.C. §§ 1692–1692p.

2 15 U.S.C. §§ 1681–1681x.

owe. See generally (ECF No. 1). Plaintiff originally opened the accounts at issue with Credit One

Bank and Fingerhut, but subsequently closed the accounts after he reported suspicious and

fraudulent activity on the accounts. Id. at 2–5. Credit One Bank and Fingerhut later sold the

accounts to LVNV, whose collection agency, Resurgent, has attempted to collect on the accounts

from Plaintiff. Id. at 4, 5, 6–9. Plaintiff asserts that the amounts the Defendants are seeking to

collect are the result of fraudulent acts by the original creditors such that Plaintiff does not owe

any money on the accounts. Id. at 6–7.

Plaintiff alleges that he filed this action in response to debt collection lawsuits Defendant

LVNV has brought against Plaintiff in the Davidson County General Sessions Court in Nashville,

Tennessee. Id. at 11–12. Specifically, Plaintiff claims that LVNV is not registered in the state of

Tennessee to collect debts in violation of the FDCPA and that Defendants lack standing to collect

the debts. Id. at 16–19. Plaintiff further alleges claims for fraud and invasion of privacy. Id. For

relief, Plaintiff monetary damages and injunctive relief. Id. at 20.

STANDARD OF REVIEW

The recommendations set forth in the Report have no presumptive weight, and this court

remains responsible for making a final determination in this matter. Wimmer v. Cook, 774 F.2d

68, 72 (4th Cir. 1985) (quoting Mathews v. Weber, 423 U.S. 261, 270–71 (1976)). The court is

charged with making a de novo determination of those portions of the Report to which a specific

objection is made, and the court may accept, reject, modify, in whole or in part, the

recommendation of the magistrate judge or recommit the matter with instructions. 28 U.S.C. §

636(b)(1). However, the court need only review for clear error “those portions which are not

objected to—including those portions to which only ‘general and conclusory’ objections have been

made[.]” Dunlap v. TM Trucking of the Carolinas, LLC, 288 F. Supp. 3d 654, 662 (D.S.C. 2017).

“An objection is specific if it ‘enables the district judge to focus attention on those issues—factual

and legal—that are at the heart of the parties’ dispute.’” Id. at 662 n.6 (quoting United States v.

One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, & Contents, Known As:

2121 E. 30th St., Tulsa, Okla., 73 F.3d 1057, 1059 (10th Cir. 1996)). On the other hand, objections

which merely restate arguments already presented to and ruled on by the magistrate judge or the

court do not constitute specific objections. See, e.g., Howard v. Saul, 408 F. Supp. 3d 721, 726

(D.S.C. 2019) (noting “[c]ourts will not find specific objections where parties ‘merely restate word

for word or rehash the same arguments presented in their [earlier] filings’”); Ashworth v.

Cartledge, Civ. A. No. 6:11-cv-01472-JMC, 2012 WL 931084, at *1 (D.S.C. March 19, 2012)

(noting that objections which were “merely almost verbatim restatements of arguments made in

his response in opposition to Respondent’s Motion for Summary Judgment . . . do not alert the

court to matters which were erroneously considered by the Magistrate Judge”). Furthermore, in

the absence of specific objections to the Report, the court is not required to give any explanation

for adopting the magistrate judge’s recommendation. Greenspan v. Brothers Prop. Corp., 103 F.

Supp. 3d 734, 737 (D.S.C. 2015) (citing Camby v. Davis, 718 F.2d 198, 199–200 (4th Cir. 1983)).

Additionally, since Plaintiff is proceeding pro se, this court is charged with construing his

filings liberally in order to allow for the development of a potentially meritorious case. See Hughes

v. Rowe, 449 U.S. 5, 9 (1980); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). This does

not mean, however, that the court can construct Plaintiff’s legal arguments for him, Small v.

Endicott, 998 F.2d 411, 417–18 (7th Cir. 1993), or “conjure up questions never squarely presented”

to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

DISCUSSION

In his Report, the magistrate judge recommends that this case be transferred to the United

States District Court for the Western District of Tennessee because venue in this district is

improper. (ECF No. 21 at 1, 3–5). First, the magistrate judge noted that, for purposes of venue, a

corporation or business entity “is deemed to reside ‘in any judicial district in which the defendant

is subject to the court’s personal jurisdiction with respect to the civil action in question.’” (ECF

No. 21 at 3 (quoting 28 U.S.C. § 1391(c))). Additionally, “[m]ere presence in this district by the

defendants does not, in and of itself, provide personal jurisdiction over the defendants.” Id. The

magistrate judge then noted that all of Plaintiff’s allegations relate to Tennessee, not South

Carolina. Id. at 3–4. Specifically, Plaintiff alleges that the Defendants improperly attempted to

collect a debt against Plaintiff in Tennessee and that Defendants are not licensed to collect debts

in Tennessee. Id. Thus, the magistrate judge found that “it is unclear whether the court has

personal jurisdiction over [Defendants] in this action[,]” and concluded that venue is, therefore,

not proper in this court. Id. (emphasis in original).

Having concluded that venue is improper in this district, the magistrate judge correctly

noted that “[t]he court may, ‘in the interest of justice,’ transfer a case ‘to any district or division in

which it could have been brought.’” Id. at 4 (quoting 28 U.S.C. § 1406(a)). Accordingly, the

magistrate judge concluded that, “because Tennessee is where the alleged unlawful collections

actions occurred and the plaintiff’s FDCPA allegations rely on an analysis of Tennessee state law,

venue for this action is proper in the Western District of Tennessee” as “‘a substantial part of the

events or omissions giving rise to the claim[s] occurred’ there.” Id. at 4 (quoting 28 U.S.C.

§ 1391(b)(2)).

On April 5, 2021, Plaintiff filed objections to the magistrate judge’s Report. (ECF No. 25).

First, Plaintiff objects to the action being transferred to the Western District of Tennessee, instead

of the Middle District of Tennessee where Plaintiff resides. Id. at 1. Plaintiff resides in Madison,

Tennessee. (ECF Nos. 1 at 2; 25 at 1). Madison, Tennessee is located in Davidson County, which

falls within the Middle District of Tennessee. See Metro Government of Nashville & Davidson

County, Tennessee, https://www.nashville.gov/default.aspx (last visited July 8, 2021) (showing

Madison, Tennessee falls within Council Districts 7, 8, and 9 for Davidson County); Federal

Judicial Center, U.S. District Courts for the Districts of Tennessee: Judicial District Organization,

1802-present, https://www.fjc.gov/history/courts/u.s.-district-courts-districts-tennessee-judicial-

district-organization-1802-present (last visited July 8, 2021).3 Accordingly, because the bulk of

Plaintiff’s allegations regarding the unlawful collections attempts occurred at or near Plaintiff’s

home in Madison, Tennessee, the court sustains this objection and finds that the proper venue for

this action is the Middle District of Tennessee rather than the Western District.

Plaintiff’s second objection merely disagrees with the magistrate judge’s conclusion that

venue is improper in this district. Id. at 1–2. Specifically, Plaintiff appears to argue that

Defendants are both residents of South Carolina because they both have addresses in South

Carolina. See id. The court recognizes that both Defendants are registered with the South Carolina

Secretary of State and have a registered agent whose address is in West Columbia, South Carolina.

See South Carolina Secretary of State, Entity Profile – LVNV Funding LLC, S.C. Sec’y of State

Bus. Entities Online, https://businessfilings.sc.gov/BusinessFiling/Entity/Profile/1b25eab9-0736-

4ccf-ac92-e8b7b6fadc57 (last visited July 8, 2021) [hereinafter LVNV Entity Profile]; South

3 The court takes judicial notice of the Davidson County and Federal Judicial Center records, because they are matters

of public record “not subject to reasonable dispute.” Fed. R. Evid. 201(b); see also, e.g., Philips v. Pitt Cty. Mem’l

Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (noting courts “may properly take judicial notice of matters of public

record”).

Carolina Secretary of State, Entity Profile – Resurgent Capital Services L.P., S.C. Sec’y of State

Bus. Entities Online, https://businessfilings.sc.gov/BusinessFiling/Entity/Profile/c20de09b-3151-

4595-a641-b90ab8dd0871 (last visited July 8, 2021) [hereinafter Resurgent Entity Profile].4

However, as the magistrate judge correctly noted, the Defendants’ “[m]ere presence in this district

. . . does not, in and of itself, provide personal jurisdiction over defendants” such that they could

be considered residents of this district for purposes of proper venue. (ECF No. 21 at 3); see also

Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 137–38 (4th Cir. 2020) (citing Builder Mart of Am.,

Inc. v. First Union Corp., 349 S.C. 500, 563 S.E.2d 352 (Ct. App. 2002), overruled in part on

other grounds by Farmer v. Monsanto Corp., 353 S.C. 553, 579 S.E.2d 325 (2003)) (noting that

“South Carolina law does not make consent to general jurisdiction a consequence of obtaining a

certificate of authority to transact business” such that a corporation is “not subject to personal

jurisdiction in South Carolina simply because it had registered with the South Carolina Board of

Financial Institutions and appointed an agent for service of process” (emphasis in original)).

Moreover, Plaintiff does not allege any of Defendants’ wrongful acts took place in or are in any

way connected to the state of South Carolina, nor does he “allege[] injuries that arise out of or

relate to” any activities of Defendants’ in this state. Fidrych, 952 F.3d at 138 (quoting Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)) (noting

that specific personal jurisdiction “may [only] be exercised[] if ‘the defendant has purposefully

directed his activities at residents of the forum, and the litigation results from alleged injuries that

arise out of or relate to those activities’”). Therefore, the magistrate judge correctly concluded

that the court lacks personal jurisdiction over Defendants with respect to this action such that venue

4 The court similarly takes judicial notice of the business records of the South Carolina Secretary of State’s website,

as they are also matter of public record “not subject to reasonable dispute.” Fed. R. Evid. 201(b); see also, e.g., Sabika,

Inc. v. Goshen Sparkling Jewelry, LLC, Civ. No. 1:13-00848, 2013 WL 12180994, at *4, *4 n.3 (S.D. W. Va. July 12,

2013) (taking judicial notice of records from the West Virginia Secretary of State).

is improper in this district. Accordingly, Plaintiff’s second objection is without merit and is

overruled.

Thus, having thoroughly reviewed the record, the Report, and Plaintiff’s objections, the

court ADOPTS in part the magistrate judge’s Report. (ECF No. 21). Specifically, the court

agrees with the magistrate judge’s conclusion that a transfer of venue is warranted in this case.

The court agrees with Plaintiff, however, that the proper venue to which this case should be

transferred is the United States District Court for the Middle District of Tennessee. Accordingly,

it is hereby ORDERED that this case be transferred to the United States District Court for the

Middle District of Tennessee.

IT IS SO ORDERED.

s/Timothy M. Cain

United States District Judge

July 21, 2021

Anderson, South Carolina

NOTICE OF RIGHT TO APPEAL

The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4

of the Federal Rules of Appellate Procedure.