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Taub v. Parker Jewish Institute for Health Care and Rehabilitation

United States District Court, N.D. California

July 19, 2019

ROSS TAUB, Plaintiff,




         Plaintiff Ross Taub brings suit against Defendants Parker Jewish Institute for Health Care and Rehabilitation (“Parker”) and Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrare, Wolf & Carone, LLP (“Abrams LLP”) (collectively, “Defendants”) for alleged violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., California's Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”), California Civil Code §§ 1788-1788.33, and California's Unfair Competition Law (“UCL”), California Business and Professions Code sections 17200, et seq. Abrams LLP moves to dismiss for lack of personal jurisdiction, improper venue, and forum non conveniens. Parker joins Abrams LLP's motion only as to forum non conveniens. This matter is suitable for disposition without oral argument pursuant to Civil Local Rule 7-1(b). For the reasons explained below, while personal jurisdiction is appropriately exercised here, the Defendants' alternate motion to dismiss for forum non conveniens must be granted.

         II. BACKGROUND [1]

         In November 2016, Taub helped to admit his cousin, Susan Slavetsky, to Parker's facility as a patient. As part of the admissions process to Parker, Taub signed the Admission Agreement as the Resident Representative, whereby Taub agreed to provide Parker with his cousin's financial resources to pay for her care. Also contained in the agreement was explicit language reflecting that Taub, as the Resident Representative, was not personally responsible for the cost of care from his personal assets. A forum-selection clause was included in the agreement, designating New York state court as the appropriate forum for all actions arising from or related to the contract. (Darmstadt Decl. ¶ 4.) Slavetsky ultimately died at the Parker facility.

         On July 12, 2017, Taub received at his California address a collection letter from Defendants informing him that he owed $71, 636.35 and that he could be responsible to Parker for damages that flowed from his apparent breach of the Admission Agreement. Abrams LLP was apparently retained by Parker to collect the debt. Subsequently, on December 15, 2017, Defendants filed a collection lawsuit in New York state court against Taub in an attempt to collect the debt. In addition to hiring an attorney to defend himself in the New York action, Taub filed a complaint with the New York Attorney General regarding the lawsuit. The Attorney General's office sent a letter to Abrams LLP requesting that the Defendants withdraw their lawsuit in light of the Admission Agreement's terms barring Taub from being held personally responsible for the cost of care from his personal assets.

         On December 13, 2018, Taub filed suit against Abrams LLP and Parker asserting violations of the FDCPA, the Rosenthal Act, and the UCL. Parker answered the Complaint in April 2019. That same day, Abrams LLP filed the present motion, which Parker joins only as to the motion to dismiss for forum non conveniens.


         An action is subject to dismissal if the court lacks personal jurisdiction over the defendants. See Fed. R. Civ. P. 12(b)(2). Where there is no federal statute applicable to determine personal jurisdiction, a district court should apply the personal jurisdiction law of the state where the federal court sits. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). California law requires only that the exercise of personal jurisdiction comply with federal due process requirements. See Id. at 800-01. Personal jurisdiction over a defendant that does not reside in the forum state may be exercised consistent with due process if the defendant has either a continuous and systematic presence in the state (general jurisdiction), or minimum contacts with the forum state such that the exercise of jurisdiction “does not offend traditional notions of fair play and substantial justice” (specific jurisdiction). See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks and citation omitted); see also Daimler AG v. Bauman, 571 U.S. 117, 126-27 (2014) (outlining the distinction between the two forms of jurisdiction).

         If personal jurisdiction is challenged, the plaintiff bears the burden of establishing the district court's personal jurisdiction over the defendant. See Schwarzenegger, 374 F.3d at 800. However, when the motion is based on written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdiction to avoid the motion to dismiss. See Id. While a district court's jurisdictional analysis must consider plaintiffs' uncontroverted allegations to be true, a plaintiff may not simply rest on the “bare allegations of the complaint[.]” Schwarzenegger, 374 F.3d at 800 (internal quotation marks and citation omitted). “Conflicts between parties over statements contained in affidavits must be resolved in the plaintiff's favor.” Id.; see also Bancroft & Masters, Inc. v. Augusta Nat'l, Inc., 223 F.3d 1082, 1087 (9th Cir. 2000) (“Because the prima facie jurisdictional analysis requires us to accept the plaintiff's allegations as true, we must adopt [the plaintiff's] version of events for purposes of this appeal.”), overruled on other grounds by Yahoo! Inc. v. La Ligue Contre La Racisme et L'Antisemitisme, 433 F.3d 1199, 1206-07 (9th Cir. 2006) (en banc).


         A. Personal Jurisdiction

         As Taub does not suggest general jurisdiction could attach to Abrams LLP, the operative jurisdictional question concerns specific jurisdiction. Such personal jurisdiction can be exercised over a non-resident defendant when three requirements are satisfied: “(1) The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its law; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.” Schwarzenegger, 374 F.3d at 802 (citation omitted). “The plaintiff bears the burden of satisfying the first two prongs of the test.” Id. “If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to ‘present a compelling case' that the exercise of jurisdiction would not be reasonable.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78 (1985)).

         The Ninth Circuit has explained that “purposeful direction” and “purposeful availment” are “two distinct concepts.” Schwarzenegger, 374 F.3d at 802. “A purposeful direction analysis . . . is most often used in suits sounding in tort, ” while “[a] purposeful availment analysis is most often used in suits sounding in contract.” Id. However, “there is no absolute rule prohibiting the application of either test[.]” Lang v. Morris, 823 F.Supp.2d 966, 970 (N.D. Cal. 2011). The ...

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