Steffen v. Vader Mountain Capital et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
MARK DAVID STEFFEN,
Plaintiff,
vs.
VADER MOUNTAIN CAPITAL, STEPHANIE
BAEZ,
Defendants,
3-.22-CV-03001-RAL
OPINION AND ORDER GRANTING
DEFENDANTS' MOTION TO DISMISS
WITHOUT PREJUDICE TO REFILING
This action arises from a business financing arrangement in which the pro se plaintiff, Mark
David Steffen, sold and assigned to Vader Mountain Capital, aka Vader Servicing, LLC
(collectively "Vader"), a portion of the future receipts of his sole proprietorship, which does
business under the name "SCS Protective." Doc. 5 at 1. Steffen alleges that Vader and Stephanie
Baez' (collectively "Defendants") are "unlicensed lenders" that provide illegal loans and then
purportedly violated through collection efforts the federal Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C.A. § 1692 et seq., and SDCL 54-4-4. 2 Docs. 1-3, 5 at 2. Because venue is
' Baez is an employee ofWhetstone Holdings, LLC, a parent company ofVader. Doc. 7.
2 Defendants suggest, Doc. 1 at ^ 9 fn. 1, the plaintiff may have meant to seek recovery under SDCL
§ 54-4-44 which states: "After procuring such license from the Division of Banking, the licensee
may engage in the business of making loans and may contract for and receive interest charges and
other fees at rates, amounts, and terms as agreed to by the parties which may be included in the
principal balance of the loan and specified in the contract. However, no licensee may contract for
or receive finance charges pursuant to a loan in excess of an annual rate of thirty-six percent,
including all charges for any ancillary product or service and any other charge or fee incident to
the extension of credit. A violation of this section is a Class 1 misdemeanor. Any loan made in
violation of this section is void and uncollectible as to any principal, fee, interest, or charge."
1
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improper, this Court dismisses the complaint under Federal Rule of Civil Procedure 12(b)(3)
without prejudice to refiling in a court in the State of New York.
I. Background
Vader Servicing, LLC, which operates as Vader Mountain Capital, is a Delaware company
with its principal place of business in New York, New York. Doc. 6 at ^ 1, 3. It provides revenue-
based financing services. Doc. 5 at 4. As Vader describes it, businesses reach out to Vader and
transact business in Vader's home state of New York by selling their future revenue to Vader.
Doc. 5 at 4. Vader maintains that it does not provide loans. Doc. 5 at 4. As a condition ofrevenue-
based financing, Vader requires companies to enter into agreements containing a forum selection
clause requiring venue of any suit to be in New York. Doc. 5 at 3-4.
In November 2021, Steffen entered into a revenue-based financing agreement with Vader.
Doc. 5 at 4. In connection with the agreement, Vader remitted $7,152.00 (less certain disclosed
fees) to Steffen for the purchase of $11,625 worth of SCS Protective's future revenue. Doc. 5 at
5. Steffen signed the agreement and initialed each page. Doc. 5 at 5. Section 4.5 of the agreement
included the following language:
[T]his Agreement shall be governed by and construed in accordance with the laws
of the state of New York . . . Any suit, action or proceeding arising hereunder, or
the interpretation, performance or breach of this Agreement, shall, if Purchaser so
elects, be instituted in any court sitting in New York, (the "Acceptable Forums"),
Seller agrees that the Acceptable Forums are convenient to it, and submits to the
jurisdiction of the Acceptable Forums and waives any and all objections to
jurisdiction or venue.
Doc. 6-1 at § 4.5. The agreement also specified:
Seller agrees to use the Purchase Price solely for business purposes, and not for
personal, family or household purposes. Seller understands that Seller's agreement
not to use the Purchase Price for personal, family or household purposes means
Steffen was the "Seller" under the agreement. Vader was the "Purchaser."
2
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certain important rights conferred upon consumers pursuant to federal or state law
will not apply to this Agreement.
Doc. 6-1 at §2.14.
In December 2021, Steffen sued Vader and Baez in South Dakota's Small Claims Court of
the Sixth Judicial Circuit in Gregory County, South Dakota, alleging the Defendants unlawfully
used personal and professional information to establish a loan and through collection efforts
violated the FDCPA nine times, as well as claiming violations of'SDCL 54-4-4." Doc. 1-3.
Steffen sought $12,000 in damages. Doc. 1-3.
Just one month later, the Defendants removed Steffen's case to this Court because Steffen
had claimed damages under a federal statute thus triggering federal question jurisdiction. Doc. 1
at ^ 9, 10. They pointed to a portion of the FDCPA, 15 U.S.C.A. § 1692k(d), which states:
An action to enforce any liability created by this subchapter may be brought in any
appropriate United States district court without regard to the amount in controversy,
or in any other court of competent jurisdiction, within one year from the date on
which the violation occurs.
Doc, 1 at ^ 10. After removing the action to this Court, Defendants moved to dismiss under Rule
12(b)(2) for lack of personal jurisdiction, 12(b)(3) for improper venue, and 12(b)(6) for failure to
state a claim. Docs. 4, 5.
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Defendants have submitted affidavits. Docs. 6 , 7 , to establish that they lack sufficient
minimum contacts with South Dakota to be subject to personal jurisdiction. Defendants
acknowledge that Steffen is located in South Dakota but state that none of the events or omissions
alleged by Steffen's complaint occurred in the jurisdiction as any contact between the parties took
place via e-mail or on phone calls. Doc. 5 at 7.
Steffen has neither responded to Defendants' motion to dismiss, nor filed any pleadings in
this Court as of the date of this opinion and order. However, the Defendants have attached an e-
mail from Steffen as an exhibit in a later filing where he contests "mov[ing] the venue to District
Court" because "the District Court has no authority over personal damages caused via violation of
South Dakota Codified Law."6 Docs. 11, 11-1. The Defendants have submitted notice of no
opposition to the Court that Steffen has failed to respond within the time requirements of the local
rules7 of the United States District Court for the District of South Dakota. Docs. 9, 11. After
reviewing Defendants' supporting brief. Doc, 5, this Court grants the motion to dismiss without
"Vader has no members residing in South Dakota." Doc 5 at 3. "Vader has no employees,
agents, or representatives in South Dakota apart from the local counsel it retained for the purpose
of this lawsuit." Doc 5 at 3. "Vader has no offices in South Dakota." Doc 5 at 3. "Vader's offices
and employees are located in New York and Florida." "Its bank accounts are in Florida and
California." Doc 5 at 3. "Vader performs under all of its agreements in New York, California,
and Florida." Doc 5 at 3. "Vader does not do business in South Dakota," Doc 5 at 3. Vader has
not reached out to South Dakota, nor does it solicit business there. Docs. 5 at 4, 6 at ^ 12. Instead,
businesses generally solicit Vader for services. Doc. 5 at 4.
5 Baez resides in Hialeah, Florida, and has never been to the state of South Dakota for any reason.
Doc. 5 at 3.
6 This Court could exercise supplemental jurisdiction to hear the state law claims under 28 U.S.C.
§ 1367 if the Court finds there is proper federal jurisdiction to hear the FDCPA claims and the two
claims are related to the same transaction or occurrence. 28 U.S.C. § 1367 (stating "the district
courts shall have supplemental jurisdiction over all other claims that are so related to claims in the
action within such original jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution.")
Local Rule 7.1(B) states that a party is required to file a responsive brief "[o]n or before 21
calendar days after service of a motion and brief, unless otherwise specifically ordered by the
court." This means Steffen was required to respond on or before February 14, 2022.
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prejudice under Rule 12(b)(3) for improper venue as it relates to Vader. Baez is dismissed as a
defendant under Rule 12(b)(2) for lack of personal jurisdiction and under Rule 12(b)(3) for
improper venue.
II. Discussion
The general venue statute, 28 U.S.C. § 1391(b), states that a civil action may be brought
m:
(1) a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought
as provided in this section, any judicial district in which any
defendant is subject to the court's personal jurisdiction with respect
to such action.
28U.S.C.§ 1391(b).
"When venue is challenged, the court must determine whether the case falls within one of
the three categories set out in § 1391(b). If it does, venue is proper; if it does not, venue is improper
. ..." Ati. Marine Constr. Co. v. U.S. Dist. Ct. for the W. Dist. ofTex., 571 U.S. 49 (2013). "If
venue is improper, the Court must either dismiss the action or, in the interest of justice, transfer
the action to the proper district." Hurt v. United States, No. 4:20-CV-00938-PLC, 2020 WL
4220479, at *2 (E.D. Mo. July 23, 2020) (citing 28 U.S.C. § 1406(a)), affd. No. 20-2684,2020
WL 8463626 (8th Cir. Sept. 24, 2020); see also Heldt v. Payday Fin., LLC, 12 F. Supp. 3d 1170,
1177 (D.S.D.2014) (stating that a Rule 12(b)(3) motion may be used to dismiss a case when venue
was "wrong" or "improper" where filed). "In considering a motion to dismiss, the pleadings are
construed in the light most favorable to the nonmoving party, and the facts alleged in the complaint
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must be taken as true. Ambiguities must be resolved in favor of the nonmoving party." Doshier
v. Twitter. Inc., 417 F. Supp. 3d 1171, 1174 (E.D. Ark. 2019). "One of the central purposes of
statutory venue is to ensure that a defendant is not haled into a remote district having no real
relationship to the dispute." Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir. 1995) (cleaned up and
citation omitted). Although personal jurisdiction is normally considered before venue, the court
can switch the analysis "when there is a sound prudential justification for doing so." Leroy v.
Great W, United Corp., 443 U.S. 173, 180 (1979). Here, because Steffen did not respond at all to
the motion and this Court remains unclear how a South Dakotan and his small business ended up
paired with a New York business in what seems to be akin to accounts receivable factoring, this
Court declines to decide the case based on lack of personal jurisdiction over Vader.
A. § 1391(b)(l) and Personal Jurisdiction over Baez
The first avenue for venue is § 1391(b)(l), which states that venue is proper in "a judicial
district in which any defendant resides, if all defendants are residents of the State in which the
district is located." 28 U.S.C, § 1391(b)(l). A defendant individual "shall be deemed to reside in
the judicial district in which that person is domiciled." 28 U.S.C. § 1391(c)(l). A defendant
corporation is deemed a resident in any district in which "such defendant is subject to the court's
personal jurisdiction." 28 U.S.C. § 1391(c)(2). South Dakota's long arm statute, S.D.C.L. § 15-7-
2, which is broadly interpreted, extends jurisdiction "to any cause of action arising from ... the
transaction of any business within the state." See Denver Truck & Trailer Sales. Inc. v. Design &
Bide. Servs., Inc., 653 N.W.2d 88, 91 (S.D. 2002). Thus, to determine whether Vader's business
contacts expose it, or Baez's contacts expose her, to personal jurisdiction in South Dakota, the
court must determine "whether the proposed assertion of jurisdiction comports with federal due
process requirements." Id.
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Due process requires that the defendant "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) (cleaned up and
citations omitted). Courts must consider the "quality and nature" of the defendant's activities and
will find that personal jurisdiction does not exist when the forum state "has no contacts, ties, or
relations" to the defendant. Id at 319. In other words, the plaintiff cannot be the "only link"
between the forum state and defendant. Walden v. Fiore, 571 U.S. 277, 285 (2014); see also
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985) ("If the question is whether an
individual's contract with an out-of-state party alone can automatically establish sufficient
minimum contacts in the other party's home forum, we believe the answer clearly is that it
cannot.").
The Supreme Court of the United States has held that to be subject to jurisdiction of a
forum state, a defendant must "purposely avail" itself within the forum to invoke the benefits and
protections of its law. Hanson v. Denckla, 357 U.S. 235, 253 (1958). The "defendant's conduct
and connection with the forum State" must be such that they can "reasonably anticipate being
haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S, 286, 287 (1980).
"This 'purposeful availment' requirement ensures that a defendant will not be haled into a
jurisdiction solely as a result of 'random,' 'fortuitous,' or 'attenuated/ contacts." Burger King
Corp., 471 U.S. at 475 (citations omitted). "[Ujnilateral activity of those who claim some
relationship with a nonresident defendant cannot satisfy" the minimum contact requirement.
Hanson.357U.S.at253.
When deciding a personal jurisdiction issue, the Eighth Circuit has held that courts should
consider five factors when determining the sufficiency of a defendant's contact: "(I) the nature
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and quality of contacts with the forum state; (2) the quantity of such contacts; (3) the relation of
the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its
residents; and (5) convenience of the parties." Burlington Indus., Inc. v. Maples Indus.. Inc., 97
F.3d 1100,1102 (8th Cir. 1996). The first three factors, being of "primary importance," are closely
related and can be considered together. IcL; Digi-Tel Holdings, Inc. v. Proteq Telecomm. fPTE\
Ltd., 89 F.3d 519, 523 (8th Cir. 1996). The Eighth Circuit has elaborated on the third factor—the
relationship of the cause of action to the contacts—to distinguish between general and specific
jurisdiction. Burlington Indus., Inc., 97 F.3d at 1103 ("Specific jurisdiction refers to jurisdiction
over causes of action arising from or related to a defendant's actions within the forum state while
general jurisdiction refers to the power of a state to adjudicate any cause of action involving a
particular defendant, regardless of where the cause of action arose." (cleaned up and citations
omitted)).
This Court does not have personal jurisdiction—either general or specific—over Baez. As
stated above, for venue purposes, an individual is deemed to reside in the judicial district in which
they are domiciled. 28 U.S.C. § 1391(c)(l). Baez is domiciled in Florida and has never visited
South Dakota. Doc. 7. Steffen has not offered any evidence that Baez has the sort of continuous
and systematic presence in South Dakota necessary for general jurisdiction to exist. See Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (explaining that for general
jurisdiction to exist, the defendant's contacts with the forum state must be "so continuous and
systematic" that the defendant is "essentially at home" there (cleaned up and citation omitted)).
As for specific jurisdiction, it is unclear what contact, if any, Baez has had with Steffen other than
as an employee of a holding company ofVader, Indeed, Baez's only link with the forum state
seems to be through the plaintiff. Weighing the factors, Baez's contacts are quantitatively nil and
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qualitatively low. Baez's contacts with South Dakota—or lack thereof—do not meet the minimum
threshold required for a finding of venue under § 1391(b)(l) or separately, for personal jurisdiction
under a Rule 12(b)(2) motion.
There is no general jurisdiction over Vader in South Dakota, but whether Vader has
minimum contacts with South Dakota for the purposes of specific jurisdiction or § 1391(b)(l) is a
bit different than with Baez. As previously stated, § 1391(c)(2) states that a nonresident corporate
defendant is deemed to reside wherever it "is subject to the court's personal jurisdiction." General
jurisdiction is appropriate over a non-resident corporate defendant whenever a corporate
defendant's "affiliations with the State are so continuous and systematic as to render it essentially
at home in the forum State." Daimler AG v. Bauman, 571 U.S. 117, 138-39 (2014) (cleaned up
and citation omitted). A corporate defendant is "essentially at home" in the state of its
incorporation or in the state in which it has its principal place of business. Id. On the other hand,
specific jurisdiction is proper "only if the injury giving rise to the lawsuit occurred within or had
some connection to the forum state, meaning that the defendant purposely directed its activities at
the forum state and the claim arose out of or relates to those activities." Steinbuch v. Cutler, 518
F.3d 580, 586 (8th Cir. 2008).
Regarding general jurisdiction, Vader is a Delaware limited liability company with its
principal place of business in New York. Docs. 5, 6. It does not employ anyone located within
South Dakota and maintains no office presence within the State. Docs. 5, 6. It states that it
conducts no business in South Dakota and does not advertise in the state. Doc. 6. Therefore,
Vader has insufficient minimum contacts with South Dakota to make general jurisdiction
appropriate.
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Regarding specific jurisdiction, without more of a full record, this Court cannot completely
analyze whether Vader reached out or had such minimum contacts with South Dakota to satisfy
constitutional due process concerns. The Defendants claim Vader does not target businesses
within South Dakota, but presumably Steffen had to discover its service somewhere. Doc. 6 at ^
12. On this record where Steffen has not responded to the motion to dismiss, Vader's contacts
with South Dakota do not appear sufficient to justify specific jurisdiction over Vader for the
allegations alleged in Steffen's complaint. See Bell Paper Box, Inc. v. Trans W. Polymers, Inc.,
53 F.3d 920, 923 (8th Cir. 1995) (finding no personal jurisdiction where only a single purchase
order linked plaintiff and defendant and stating "[t]he use of interstate facilities, such as telephones
or mail, is a secondary or ancillary factor and cannot alone provide the minimum contacts required
by due process" (cleaned up and citation omitted)); Hylland v, Flaum, No. 4:16-CV-04060-RAL,
2016 WL 6901267, at *3 (D.S.D. Nov. 22, 2016) (listing Eighth Circuit cases and stating that
although electronic communications counts toward minimum contacts, "they do not establish
personal jurisdiction by themselves"); Doshier, 417 F. Supp. 3d at 1175-78 (finding no specific
jurisdiction in forum where company's only contact with plaintiff occurred electronically).
An analysis of the other factors if this Court were to take what Vader submitted as true,
weighs against finding the minimum contacts sufficient to satisfy § 1391(b)(2). Vader stated that
it conducts no business in South Dakota, employs no individuals there, and does not solicit or
advertise within the state. While this Court does have an interest in ensuring disputes that fall
within federal jurisdiction are adjudicated, it is likely as inconvenient for Vader as it is convenient
for Steffen to litigate the dispute in South Dakota. Because the first three factors on this record
weigh heavily against finding that Steffen can establish that Vader has the minimum contacts
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necessary to be considered a resident subject to South Dakota's personal jurisdiction, venue is
improper under § 1391(b)(l).
B. § 1391(b)(2)
The second avenue for venue is § 1391(b)(2), which makes venue proper in "a judicial
district in which a substantial part of the events or omissions giving rise to the claim occurred, or
a substantial part of property that is the subject of the action is situated." See Woodke, 70 F.3d at
985 (quoting 28 U.S.C. § 1391(b)(2)). "[T]he Eighth Circuit Court of Appeals has determined that
courts should focus on the defendant's allegedly wrongful or relevant activities in the forum state,
not on the effect of those activities on plaintiffs in the forum state." Doshier, 417 F. Supp. 3d at
1178 (citing Steen v. Murray, 770 F.3d 698, 703 (8th Cir. 2014)).
Again, without a full record or response from Steffen, this Court is left guessing what
"events or omissions" could have occurred within South Dakota that would establish jurisdiction.
As discussed, Baez had insufficient contact with South Dakota to even justify personal jurisdiction,
let alone venue, in South Dakota. Vader contends it performs its agreements in New York,
California, and Florida, and that any and all contact with Steffen occurred electronically. Doc. 6
at ^ 9. Because Steffen has failed to offer what events or omissions occurred in South Dakota that
gave rise to this action, this Court cannot find specific jurisdiction via § 1391(b)(2) for either Baez
or Vader.
C. § 1391(b)(3)
The last avenue for venue is § 1391(b)(3), which states "if there is no district in which an
action may otherwise be brought as provided in this section, any judicial district in which any
defendant is subject to the court's personal jurisdiction with respect to such action." Under its
plain language, this subsection only applies if there is no district in which venue would be proper.
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See Everest Indem. Ins. Co. v. Ro. 200 F. Supp. 3d 825. 834 n.5 (D. Minn. 2016); Arkansas-
Missouri Forest Prods., LLC v. Lemer, No. 4:15-cv-00771-SRB, 2016 WL 756503, at *4 (W.D.
Mo. Feb. 25, 2016). Given Steffen's consent to a forum selection provision that "[a]ny suit or
proceeding ... shall ... be instituted in any court sitting in New York," there is a district in which
Steffen's action could have been brought. New York is where "a substantial part of the events or
omissions giving rise to the claim occurred" under § 1391(b)(2) and where proper venue would
exist.
This Court in some instances where venue is not properly in the District of South Dakota
will transfer a case to another federal district court where venue is proper. Quality Wood Designs,
Inc. v. Ex-Factorv, Inc., 40 F. Supp. 3d 1137, 1156 (D.S.D. 2014). This Court chooses not to do
so here because it is doubtful that federal jurisdiction exists. First, though there is complete
diversity of citizenship of the parties, the amount in controversy is too low to satisfy 28 U.S.C. §
1332. Second, there appears not to be federal question jurisdiction under 28 U.S.C. § 1331. The
type of financing arrangement does not appear to qualify as a debt under the FDCPA as the FDCPA
applies to personal or household debt, not debt in relation to business. See 15 U.S.C. § 1692a(5)
(Debt is defined as "any obligation or alleged obligation of a consumer to pay money arising out
of a transaction in which the money, property, insurance, or services which are the subject of the
transaction are primarily for personal, family, or household purposes, whether or not such
obligation has been reduced to judgment"); see also Puffy v. Landberg, 133 F. 3 d 1120, 1123 (8th
Cir. 1998) (the FDCPA applies to obligations arising out of "consumer transactions"); Holman v.
W. Valley Collection Servs.. Inc., 60 F. Supp. 2d 935, 936 (D. Minn. 1999) (The FDCPA applies
"only to debts contracted by consumers for personal, family, or household purposes; it has no
application to the collection of commercial accounts") (quoting S.Rep. No, 95-382, at 3 (1977),
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1977 U.S. Code Cong. & Admin.News 1695); C. Jaye Berger and Richard Klass, Debt Collection,
New York City Bar (Sept. 2015) https://www.nycbar.org/get-legal-help/article/debts-debt-
collection/debt-collection/ ("The FDCPA does not apply to all debts. For instance, it does not apply
to the collection of business or corporate debts."); but see Reygadas v. DNF Assocs., LLC, 982
F.3d 1119, 1125 (8th Cir. 2020) (holding that a business whose "primary objective is to collect on
debt accounts it purchased in order to turn a profit" is subject to provisions of the FDCPA). The
contract specifically prohibits using the money for personal, family or household purposes and
thus the FDCPA appears not to apply. Docs. 6 at ^ 6, 6-1 at § 2.14.
III. Conclusion
For the reasons described above, it is
ORDERED that Defendants' Motion to Dismiss, Doc. 4, is granted under Federal Rule of
Civil Procedure Rule 12(b)(3) for improper venue without prejudice to refiling against Vader in a
court in New York. It is further
ORDERED that Baez is dismissed under Rule 12(b)(2) for lack of personal jurisdiction in
South Dakota and Rule 12(b)(3) for improper venue.
DATED this 14th day of March, 2022.
BY THE COURT:
<2^>/2^^?
ROBERTO A. LAN'GE
CHIEF JUDGE
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