I know, I know - YANML, etc. Not asking for legal advice. I just need clarifcation of some directions for filing a case.
I’m thinking about suing a company. The violation of the law I’m suing on is a statutory $1000 so it would fall into small claims court ($7500 limit in Colorado). It’s a company in another state and the federal and state laws are similar but I would prefer suing under state law because it is a little better defined and should make for a easier case. Looking over a handbook for Small Claims Court I found this.
I found the registered agent and they are down in Colorado Springs, so does that mean I could sue that corporation in the El Paso County courts or do I really have to make a federal case out of it?
The registered agent and defendant corporation are two separate issues and it’s likely that do not share the same address. Many corps hire registered agent company’s that are located in a different city than the corp.
The registered agent is who you mail/serve the lawsuit on. That’s their only function as far as you’re concerned. They’ll pass it on to the defendant.
You need to determine the location of the defendant corporation in Colorado and make sure it complies with the small claims court procedures re: jurisdiction.
I can’t vouch for it, but it suggests that to sue a business in Colorado small claims, that business must have an “office” in state for the transaction of business. Venue is proper in any county in which there is an office. If the business has no office in state (e.g., an online retailer perhaps, debt collector?) then small claims court may not be available to you.
If the agent for service is just a professional agency for the sole purpose of receiving service, then that may not be considered an “office for the transaction of business.”
That being said, the firse quoted paragraph seems to imply that a company can be sued if they are out of state via their in-state registered agent and the second paragraph seems to talk about individuals that have to be in-state to be sued. Is that a fair interpretation?
“If a [domestic or foreign] corporation wants to do business in Colorado, it must have a registered agent to receive legal papers…”
A corporation can either be incorporated in Colorado (domestic) or out of Colorado (foreign).
If it is domestic, then it must have an in-state designated agent for service.
If it’s a foreign corp, but doing business in CO, then it must register to do business in Colorado and must also have an in-state agent for service.
However, just because a foreign corporation is registered to business in CO, that does not mean the corporation has a physical office in state to transact business (e.g., an insurance company incorporated in Delaware with HQ in Florida sells policies to CO residents from an office in New York). According to the link I provided, a physical office in CO seems to be required to make use of CO small claims court to sue a business.
The location of the registered agent for service is not necessarily an office to transact business. It could be a lawyer’s office, a professional agent for service, or the CEO’s vacation home.
Colorado Rules of Civil Procedure, Chapter 26, Rules of Procedure for Small Claims Courts, Rule 503. Place of Action
(a) Where Brought, Generally. All actions in the small claims court shall be brought in the county in which at the time of filing of the claim any of the defendants resides, or is regularly employed, or has an office for the transaction of business, or is a student at an institution of higher education.In an action to enforce restrictive covenants or arising from a security deposit dispute, the action may be brought in the county in which the subject real property is located.
(b) Consent to venue. If a defendant appears and defends a small claims action on the merits at trial, the defendant agrees to the place of trial.
District Courts hear civil cases in any amount, as well as domestic relations, criminal, juvenile, probate, and mental health cases. District court decisions may be appealed to the Colorado Court of Appeals (in some cases directly to the Colorado Supreme Court).
County Courts handle civil cases under $15,000, misdemeanors, traffic infractions, felony complaints (which may be sent to district court), protection orders, and small claims. County court decisions may be appealed to the district court.
In general, there is a presumption of concurrent jurisdiction with respect to federal law. That is, unless Congress says differently explicitly (or circumstances implicitly point to a contrary result), state courts can adjudicate claims under federal law. (Federal criminal law, bankruptcy, patent (but not trademark), and some other matters are noteworthy exceptions.)
As to the FDCPA, which as I recall has a $1,000 statutory penalty … if this is the gravamen of your complaint, you will be gratified to learn that it is settled law that state courts have concurrent jurisdiction over FDCPA claims. Thus you may sue for FDCPA violations in Colorado state courts.
Then if it is a federal law AND a state law, can I sue under both and get $2000 for the same violation or would a judge throw out one in favor of the other?
The California FDCPA specifically states remedies under the state statute are cumulative to the federal FDCPA. So, in California, you can add them up. Also, if the violation also applies to someone else, like a spouse or joint debtor, then they can claim damages as well, making a reasonably hefty price tag for the debt collector (although not hefty enough in my book).
If you add both state and federal claims together, then the defendant may attempt to remove the case from state to federal court. FYI.
My point about the penalties being UP TO $1,000 is that if you get an unsympathetic judge who thinks you are technically correct but you are just trying to raise the costs of collection of the other side by raising ticky-tack violations, you could end up with a judgment in your favor for the “technical” violation with a damage award of $1.
If the statute in this link [PDF] is accurate, it appears Colorado FDCPA section 12-14-113(6) prohibits double dipping (cumulative remedies under state and federal law).
Colorado FDCPA section 12-14-113(1)(c) is nice in that it permits recovery of attorney fees to the successful consumer in an action to enforce the FDCPA.
However, Section 12-14-113(1.5) sucks. It allows an award of attorney fees to the debt collector if the consumer loses the case. Federal FDCPA (15 U.S.C. 1692k(a)(3)) favors the consumer on this point by allowing the successful consumer to win an award for attorney fees, but only allows an award of attorney fees to the debt collector if the debt collector can prove the consumer brought the action in bad faith and for the purpose of harassment. Federal FDCPA appears generally more consumer friendly than Colorado in this regard. Generally speaking, consumers should choose their battles wisely.
FYI, I have seen cases where a consumer wins a claim of “actual damages” beyond the statutory penalty for inconvenience, emotional distress. Not a huge dollar figure, but it’s something.
The advantage of suing under Colorado state law is that “reasonable” is defined by case law as actual costs so it is pretty easy to prove the case if you know what the actual costs are. I don’t think the feds have put a definition as to what is reasonable or not.