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Norcom v. Lease Finance Group, LLC

United States District Court, D. Oregon

June 17, 2014

ALINA NORCOM, Plaintiff,

Keith D. Karnes, Karnes Law Offices, PC, Salem, OR.

E. Clarke Balcom, Clarke Balcom, PC, Portland, OR, Attorneys for Plaintiff.

Lee C. Nusich, Brian T. Kiolbasa, Lane Powell PC, Portland, OR, Attorneys for Defendants.


GARR M. KING, District Judge.

Plaintiff brings a complaint under the Fair Credit Reporting Act ("FCRA") and the Declaratory Judgment Act against Lease Finance Group, LLC and Joseph I. Sussman, P.C. Pending before me are Lease Finance Group's Motion for Summary Judgment and Sussman's Motion to Dismiss. For the following reasons, I grant both motions and dismiss this case.


As the director of West Linn Med Spa, plaintiff entered into a lease on November 18, 2008 for a credit card processing machine financed by defendant Lease Finance Group. Plaintiff personally guaranteed the lease. After she signed the lease, plaintiff alleges an unknown party altered the lease and added equipment to the lease agreement without her knowledge or consent. Plaintiff cancelled the lease and returned the equipment. Lease Finance Group continued to debit from plaintiff's account $107.95 a month. Plaintiff protested the debits.

Defendant Sussman, a law firm in New York, filed a complaint against plaintiff in New York on October 10, 2012 alleging breach of personal guarantee. Sussman served the complaint by mailing it to the West Linn, Oregon address appearing on the lease, where plaintiff no longer lived. Sussman obtained a default judgment in New York. On October 15, 2013, Lease Finance Group requested a copy of plaintiff's credit report. That same day, on behalf of Lease Finance Group, Sussman issued an Information Subpoena and Restraining Notice to Bank of America to restrain the funds in plaintiff's New York bank account. Lease Finance Group has not yet received or collected any funds from plaintiff.[1]

Plaintiff seeks a declaratory judgment that the default judgment entered in New York is void for lack of due process. She also seeks damages for money had and received and for violations of FCRA.


I. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2)

When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that the court has jurisdiction over the defendant. Brayton Purcell LLP v. Recordon & Recordon , 606 F.3d 1124, 1127 (9th Cir. 2010). Without an evidentiary hearing, "the plaintiff need only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss.'" Id . (quoting Pebble Beach Co. v. Caddy , 453 F.3d 1151, 1154 (9th Cir. 2006)). The court must construe plaintiff's uncontroverted factual allegations as true, "and conflicts between the facts contained in the parties' affidavits must be resolved in plaintiff's favor.'" Id . (quoting Rio Props., Inc. v. Rio Int'l Interlink , 284 F.3d 1007, 1019 (9th Cir. 2002)).

II. Motion for Summary Judgment

Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). On a motion for summary judgment, the court "must view the evidence on summary judgment in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party." Nicholson v. Hyannis Air Service, Inc. , 580 F.3d 1116, 1122 n.1 (9th Cir. 2009) (citation omitted).


I. Motion to Dismiss Joseph I. Sussman, P.C.

Sussman moves to dismiss plaintiff's claims against it for lack of personal jurisdiction.

A. Legal Standards

The jurisdictional reach of the federal court over a defendant in a diversity action is determined by the law of the forum state. Oregon extends jurisdiction to the outer limits permitted by the state and federal constitutions. Or. R. Civ. Pro. 4L. Consequently, resolution of Sussman's motion turns on whether the exercise of jurisdiction would violate federal constitutional principles of ...

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