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Kampert v. Raymond James Financial, Inc.

United States District Court, D. Oregon

February 22, 2018

DUSTIN KAMPERT, individually and on behalf of others similarly situated, Plaintiff,
v.
RAYMOND JAMES FINANCIAL, INC., Defendant.

          FINDINGS AND RECOMMENDATION

          JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE

         Defendant Raymond James Financial Services, Inc. moves to dismiss plaintiff Dustin Kampert's complaint pursuant to Fed.R.Civ.P. 12(b)(2)[1], or alternatively to transfer this case to either the Middle District of Florida or the Eastern District of Missouri. 28 U.S.C. § 1406. The Court held oral argument on February 7, 2018. For the reasons set forth below, defendant's motion to dismiss should be granted.

         BACKGROUND

         Plaintiff brings suit against defendant for violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681b(b)(3). Plaintiff alleges defendant failed to provide him a pre-adverse action notice prior to denying his sponsorship for a Series VII stockbroker's license due to information improperly procured from a LexisNexis Smartlinx consumer report. Compl. ¶¶ 1-5 (doc. 1).

         The following facts are undisputed:

         Plaintiff was employed at all relevant times by Hake Investment Group, LLC (Hake), a non-party in this litigation. Hake is a Missouri-based firm, where plaintiff worked remotely from his home in Bend, Oregon. Id. at ¶ 6. Defendant is a for-profit, Florida corporation with its principal place of business in St. Petersburg, Florida. Meyer Decl. ¶¶ 2-3 (doc. 22). Hake is an independent affiliate of defendant; Hake's employees, like plaintiff, may seek sponsorship from defendant to become registered financial advisors for Hake. Id. at ¶¶ 5-6.

         In May 2015, Hake instructed plaintiff to submit an application to defendant for sponsorship to sell financial services products using a Series VII stockbroker's license. Compl. ¶ 25 (doc. 1). Hake initiated communication with defendant from Missouri on plaintiff's behalf. Kampert Decl. ¶ 12 (doc. 25-1). Hake expressed to defendant its desire to “bring[] on a new advisor in the Portland area.” Kampert Decl. Ex. 4 (doc. 25-1). In response, defendant sent Hake a “Confidential Profile” for plaintiff to complete, which included a background check consent form. Kampert Decl. Ex. 1 (doc. 25-1). Plaintiff sent a completed application, listing a Bend, Oregon, home address, back to Hake, who then forwarded it to defendant. Kampert Decl. ¶ 19 (doc. 25-1).

         In June 2015, defendant asked Hake to send plaintiff a new application. Id. at ¶ 22. Plaintiff completed the application for a second time and once again sent it to Hake, who forwarded the application to defendant. Id.

         In July 2015, defendant completed a LexisNexis Smartlinx report and provided plaintiff with a copy. Compl. ¶ 28 (doc. 1). The report contained a criminal history from public records in Virginia. The criminal history was expunged from plaintiff's record in October 2008. Id. at ¶ 29. Plaintiff alleges defendant's improper procurement of his expunged criminal record is the reason defendant denied his sponsorship application. Id. at ¶ 31. Plaintiff also alleges that, as a result of the LexisNexis Smartlinx report, Hake terminated his employment. Id.

         STANDARD OF REVIEW

         Under Fed.R.Civ.P. 12(b)(2), dismissal is appropriate when the court lacks personal jurisdiction over the defendant. The plaintiff bears the burden of proving personal jurisdiction is proper. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008).

         Federal courts ordinarily follow the state law of the forum to determine the bounds of personal jurisdiction. Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015) (citing Daimler AG v. Bauman, 134 S.Ct. 746, 753 (2014)). Under Oregon's long arm statute, personal jurisdiction is authorized to the full extent permitted by the United States Constitution. Id. (citing Or. R. Civ. P. 4(L)). The Due Process Clause of the Fourteenth Amendment, in turn, requires nonresident defendants to “have 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. v. Washington, 326 U.S. 310, 316 (1945) (internal quotations omitted).

         The plaintiff need only make a prima facie showing of jurisdictional facts. Schwarzenegger v. Fred Martin Motor Co.,374 F.3d 797, 800 (9th Cir. 2004) (citations omitted). To determine whether the plaintiff has met his burden, the court looks only into the plaintiff's pleadings and affidavits. Id. Uncontroverted allegations must be taken ...


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