Dear ebayer137,
There are three primary approaches you can take in attempting to
recover your money: (1) filing litigation in your own state; (2)
filing litigation in the vendor's state; and/or (3) working through
law enforcement agencies. There are advantages and disadvantages to
each approach.
Please note, initially, that you may proceed with both a civil suit
and the filing of a complaint with the police. However, if you decide
to bring a civil lawsuit, you should do so in only one jurisdiction.
(You should not file simultaneous small claims actions in both
Massachusetts and Florida.)
I. Filing Litigation in Your Own State
From the perspective of convenience, it is always much easier to
commence litigation at home as opposed to in a foreign jurisdiction.
(In lawyer-talk, even the courts of another state are regarded as
"foreign".) There is information about Massachusetts small claims
courts on the Massachusetts Office of Consumer Affairs and Business
Regulation website.
http://www.state.ma.us/consumer/Pubs/smclaim.htm
If you file a complaint, the court will issue a summons which must be
served upon the defendant, along with your complaint. (Sometimes the
summons and complaint are combined into a single form.) A summons
typically outlines what the defendant must do in response to the
complaint, and usually indicates when the parties are to appear in
court in relation to the case.
Obtaining service against a person like your vendor can be tricky.
Service must ordinarily be made in person by a "process server", or by
certified mail (return receipt requested). People who expect to be
sued typically won't sign for certified mail, which makes it necessary
to try to obtain personal service. Locally, small claims courts are
usually able assist with this, as their court officer can serve the
complaint. Across state lines it may become necessary to hire a
private process server. Given the comparative cost, it is usually best
to attempt to serve the documents by certified mail, even if they are
ultimately returned.
Once the complaint and summons have been served on a defendant in
another state, several things may happen:
A. The defendant may answer the complaint, without challenging the
court's jurisdiction.
B. The defendant may object to the court's jurisdiction, indicating
that he does not have adequate connections with your state to be sued
in its courts, and that the suit should occur where he lives. The
court in your state will then have to evaluate the defendant's
connections to your state under its "long arm" statute, which defines
when it may assume jurisdiction over a defendant from another state.
You can read the Massachusetts Long Arm Statute on the website of The
183rd General Court of The Commonwealth of Massachusetts
http://www.state.ma.us/legis/laws/mgl/223a%2D3.htm .
The question for your state's court would be whether the defendant's
posting of an item (or items) for sale on eBay either constitutes
conducting business within your state, or constitutes the regular
solicitation of business from your state. If this was the defendant's
only sale within your state and the defendant objects, you may have
difficulty convincing a court that jurisdiction is proper in
Massachusetts.
C. The defendant may do nothing.
If the defendant answers the complaint without objecting to
jurisdiction, you are placed in a stronger position. If the defendant
fails to appear in court for the small claims hearing, the judge will
almost always issue a default judgment. If the defendant appears, the
judge will listen to both sides and issue a ruling. However, it is
unlikely that the defendant will travel to your state to fight a $250
claim - it sometimes happens, but it is unusual, particularly where
the defendant expects to lose.
If the defendant challenges the jurisdiction of your state's court,
and the judge agrees, your case will be dismissed and, if you wish to
continue your lawsuit, you will have to commence litigation in the
defendant's home state. If the judge rejects the challenge to
jurisdiction, the case will proceed in your state's court as if the
defendant answered the complaint. Please note that a defendant in
small claims court who is savvy enough to challenge a small court's
jurisdiction will typically do so through experience - such a person
has probably been sued before, likely on several occasions.
If the defendant does nothing, you will receive a default judgment.
However, absent some direct action, it won't be possible for you to
later argue that he consented to the jurisdiction of your state's
court. This is important when you attempt to collect the judgment.
Collecting the Judgment - One of the biggest problems with litigating
in your own state is that you will likely have to collect the judgment
in the defendant's state. Each state has a procedure pursuant to which
you register a judgment for enforcement. The defendant is informed
that the judgment has been registered, and has the opportunity to
object to the judgment. While the U.S. Constitution provides that each
state will extend "Full Faith and Credit" to the judgments of a sister
state, a defendant may still object that the court which issued the
judgment did not have jurisdiction over him. If the local court
accepts this argument, it will not enforce the judgment.
If the defendant answers the complaint without objecting to your state
court's jurisdiction, you would be in the strongest position to defend
against a challenge. If the defendant challenged your state court's
jurisdiction, even if unsuccessful, or did not do anything in response
to the complaint, the local court would likely entertain his
challenge. In the event that a challenge occurs, you would have to
file a written response to the allegations presented by the defendant
in his challenge. With due respect given to the cost and
inconvenience, it would be in your best interest to personally appear
at any hearing in relation to the challenge, or to have an attorney
represent you at such a hearing.
If the judgment is registered without objection, or the court in the
defendant's state determines that your state had jurisdiction, you can
proceed with collection of the judgment. If the court in the
defendant's state determines that your state's court did not have
jurisdiction, you will not be able to enforce your judgment in the
defendant's state.
Up to this point, you have not collected a cent, and have actually
expended additional fees for the filing of your complaint, and
possibly for service of the summons and complaint upon the defendant.
(The judgment should reimburse to you the filing fee, and most or all
of the fee for service of process.) Your next step would be to try to
either secure payment directly from the defendant, to obtain a court
order garnishing his wages, or to obtain a court order permitting you
to seize money from his bank accounts, or to seize and sell his
assets. You also have the option of using a collection agency, which
will typically charge a fee of 50% of any money it collects.
This may interest you: Even if you find that it is too much trouble to
collect a judgment, if there is sufficient information in the judgment
to specifically identify the defendant, the unpaid judgment will
appear on his credit record. Even a small unpaid judgment can have a
very negative impact on a person's credit history.
A Note About Subpoenas. A subpoena is an order that a person appear at
a particular place and time, usually for a court hearing or
deposition. The judge who issues a subpoena can only issue it against
persons within the jurisdiction of the court. In order to subpoena
somebody from another state, you would have to first obtain the
subpoena from your own court, then commence a legal action in the
state and county where the target resides, and ask a judge in that
county to enforce the subpoena from your state's courts. Relying upon
the summons - the document which tells the defendant when to appear in
court, but (unlike a subpoena) does not order him to appear on that
date - will be far less expensive and cumbersome than trying to obtain
a subpoena.
II. Filing Litigation in The Vendor's State
It is possible to file litigation in the vendor's state. Most small
claims courts will try to get the plaintiff to appear in person to
file the complaint, as many people have difficulty with the paperwork.
However, the court clerk can usually be cajoled into mailing the
complaint forms to the plaintiff, which would then be completed and
returned by mail along with the required filing fee. (As noted below,
the courts for a small claims suit in Hillsborough County, Florida may
be downloaded.)
The benefit of litigating in the defendant's state is that you know
the courts of his state have jurisdiction over him, it will be easier
to get the local court to assist with service, and you won't need to
register your judgment for local enforcement. The disadvantage is that
you would have to travel to the defendant's state and appear in court
for the small claims court hearing. You would also face the same
issues of collection described in part I - if the defendant did not
voluntarily pay, you would have to try to identify assets to pursue,
and obtain court orders permitting you to seize those assets.
Hillsborough County, Florida, where Temple Terrace is located, makes
it particularly easy to obtain the forms for small claims court. On
the website of the Clerk of the Court for Hillsborough County, you can
download small claims court forms in Adobe Acrobat's PDF format:
http://www.hillsclerk.com/content/forms/forms.htm
That website also provide an outline of how to file a small claims
court case in Hillsborough County, also in PDF format:
http://www.hillsclerk.com/content/acrobat/forms/county_civil/Evictions/helpfile6.pdf
The guide indciates that the complaint must be signed before a notary
or deputy clerk. Ordinarily, it will be sufficient to have your
signature notarized in your own state. Unfortunately, the guide also
indicates that the plaintiff will ordinarily have to appear at both a
pretrial and at a hearing or mediation proceeding. That means you
would have to travel at least once, and probably twice, to Florida in
order to complete a small claims action in the Hillsborough County
Small Claims Court.
III. Working With Local Law Enforcement
By this time, you may be asking whether it is worth trying to
litigate, given the difficulties of ultimately collecting the
judgment. You may find that your best recourse against this defendant
is to work with local law enforcement - starting with the local police
station in the town where the defendant lives. You can file a
complaint, which the police will relay to a prosecutor for review. If
the prosecutor determines that charges should be filed, and the
defendant is ultimately adjudicated guilty, states almost invariably
order the defendant to pay restitution. (Some police agencies or
prosecutors, recognizing the difficulties faced by people from other
states in attempting to secure justice in relation to minor criminal
offenses, will offer the accused the opportunity to make informal
restitution in order to avoid being charged.)
Once again, you could face the downside of having the litigation occur
in the state where the defendant resides. If the defendant contests
the charges, you will likely have to appear in court in his state in
order for the charges to proceed. (If this person has scammed a number
of people, the prosecutor will be in a much stronger position in
attempting to secure a guilty plea. In other words, you can
potentially help both yourself and others in your position by letting
the local police know about this conduct.)
In case you were wondering, eBay keeps detailed records of its users -
items they browse, buy, and sell, to whom items are sold, and any
complaints by their customers. According to a current article on the
Ha'aretz.com newspaper website, all a police agency needs to do in
order to obtain this detailed information is ask.
http://www.haaretzdaily.com/hasen/pages/ShArt.jhtml?itemNo=264863
Please note that you do not have to choose between filing a complaint
with the police or filing civil litigation in small claims court - you
may do both.
If you choose to contact the police, the contact information is:
Temple Terrace Police Department
City Hall Building
11250 N. 56th Street
Temple Terrace, FL 33617.
(813) 989-7111
Website: http://www.templeterrace.com/police/
If you go to the Temple Terrace Police Department website, you will
find that several key department officials can be contacted by email:
http://www.templeterrace.com/police/administration&faqs.htm
Research Strategy:
As a lawyer, I have brought litigation against defendants from other
states, to serve process upon out-of-state defendants, and to enforce
judgments through the courts of other states. (Please note, however,
that I practice in Michigan, not in Florida or Massachusetts and, as
the terms of use indicate, this answer is in the form of information
and not legal advice.)
Google Searches:
- "small claims" massachusetts
- massachusetts long arm statute
- "Temple Terrace" police department
- Hillsborough County court Florida
I hope you find this information helpful.
- expertlaw |
