United States District Court, S.D. Georgia, Dublin Division
LIZZIE DAVIS, PAMELA DAVIS, DENNIS GREEN, JOHNNY MOODY, JOHN SUBER, and SHIRLEY WILLIAMS, Individually and on Behalf of all Others Similarly Situated, Plaintiffs,
OASIS LEGAL FINANCE OPERATING COMPANY, LLC, OASIS LEGAL FINANCE, LLC, and OASIS LEGAL FINANCE HOLDING COMPANY, LLC, Defendants.
before the Court is a motion to dismiss filed by Defendants
Oasis Legal Finance Operating Company, LLC ("Oasis
Operating"), Oasis Legal Finance, LLC ("Oasis
Finance"}, and Oasis Legal Finance Holding Company, LLC
("Oasis Holding"), which attacks the sufficiency of
the allegations against them under Federal Rule of Civil
Procedure 12(b) (6) - Defendants also move to strike the class
allegations of the complaint. The motion has been fully
briefed and is ripe for consideration.
filed this putative class action on February 2, 2017, in the
Superior Court of Laurens County, Georgia. Plaintiffs are
personal injury plaintiffs in the State of Georgia.
Plaintiffs have entered into loan agreements ("Purchase
Agreements") with Oasis,  often in amounts of $3, 000 or
less, in exchange for repayment through any recovery from
their respective personal injury claims.Plaintiffs claim
the Purchase Agreements are usurious and illegal. Plaintiffs
filed the operative complaint in this case, the First Amended
and Recast Class Action Complaint ("FAC"), in state
court on March 30, 2017. (See Ex. 7 to Notice of
Removal, Doc. 1-7.) The case was thereafter removed to this
Court on April 28, 2017.
asserts the following causes of action: (1} the Purchase
Agreements violate the Georgia Payday Lending Act
("PLA"), O.C.G.A. § 16-17-1 et seq.
("Count I"); (2) the Purchase Agreements violate
the Georgia Industrial Loan Act ("GILA"), O.C.G.A.
§ 7-3-1 et seq. (Count II); and (3) the
Purchase Agreements are usurious, in violation of O.C.G.A.
§ 7-4-18. In addition to compensatory and statutory
damages, Plaintiffs also seek attorney's fees and
litigation expenses under O.C.G.A. § 13-6-11.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) does not test whether the plaintiff will ultimately
prevail on the merits of the case. Rather, it tests the legal
sufficiency of the complaint. Scheur v. Rhodes, 416
U.S. 232, 236 (1974) . Therefore, the court must accept as
true all facts alleged in the complaint and construe all
reasonable inferences in the light most favorable to the
plaintiff. See Hoffman-Puqh v. Ramsey, 312 F.3d
1222, 1225 (11th Cir. 2002). The court, however,
need not accept the complaint's legal conclusions as
true, only its well-pled facts. Ashcroft v.
Iqbal, 556 U.S. 662, 677-79 (2009).
complaint also must "contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.'" Id. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The plaintiff is required to plead "factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. Although there is no probability
requirement at the pleading stage, "something beyond . .
. mere possibility . . . must be alleged."
Twombly, 550 U.S. at 556-57 (citing Durma
Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005}). When,
however, on the basis of a dispositive issue of law, no
construction of the factual allegations of the complaint will
support the cause of action, dismissal of the complaint is
appropriate. See Executive 100, Inc. v. Martin
Cnty., 922 F.2d 1536, 1539 (11th Cir. 1991) .
the motion to dismiss, Oasis contends that Plaintiffs
breached the express terms of the Purchase Agreements by not
filing this action in the Circuit Court of Cook County,
Illinois. Alternatively, Oasis seeks dismissal under the
doctrine of forum non conveniens. Oasis contends
that Count III (the usury claim) should be dismissed because
Georgia's usury laws provide no private right of action.
Oasis seeks to strike the class allegations based upon an
alleged waiver in the Purchase Agreements. Oasis also argues
that class claims are not cognizable under the GILA. Finally,
Oasis raises the statute of limitation with respect to Counts
II and III.
Purchase Agreements contain a choice-of-law provision
providing that the contracts will be "governed,
construed and enforced in accordance with the laws of the
State of Georgia." (See, e.g., FAC, Ex. B,
Nonre course Purchase Agreement with Plaintiff Lizzie Davis,
¶ 6.5, Doc. 1-7.) The Purchase Agreements also provide
the following forum-selection clause:
The parties hereby irrevocably and unconditionally consent to
submit to the exclusive jurisdiction of the Circuit Court of
Cook County, Illinois for any disputes, claims, or other
proceedings arising out of or relating to this Purchase
Agreement, or the relationships that result from this
Purchase Agreement, and agree not to commence any such
lawsuit, dispute, claim or other proceeding except in the
Circuit Court of Cook County, Illinois. The parties hereby
irrevocably and unconditionally waive any objection to the
laying of venue of any lawsuit, dispute, claim or other
proceeding arising out of or relating to this Purchase
Agreement, or the relationships that result from this
Purchase Agreement, in the Circuit Court of Cook County,
Illinois, and hereby further irrevocably and unconditionally
waive and agree not to plead or claim in the Circuit Court of
Cook County, Illinois that any such lawsuit, dispute, claim
or proceeding brought in the Circuit Court of Cook County,
Illinois has been brought in an inconvenient forum.
(Id.) On the strength of this forum-selection
clause, Oasis moves to dismiss Plaintiffs' FAC in its
Atlantic Marine Constr. Co. v. U.S. Dist. Ct. for
Western Dist. of Tex., --- U.S. ---, 134 S.Ct. 568
(2013), the Supreme Court held that a forum-selection clause
could not be enforced by a motion to dismiss under 28 U.S.C.
§ 1406(a) or Federal Rule of Civil Procedure 12(b)(3),
but instead through a motion to transfer venue under 28
U.S.C. § 1404(a) . Id. at 578-80. However, this
is only applicable to forum-selection clauses that opt for
another federal venue. See 28 U.S.C. § 1404(a)
("For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil
action to any other district or division where it might have
been brought . . . .") - The Supreme Court briefly
discussed the proper basis to enforce a valid forum-selection
clause that chooses a nonfederal venue and stated that it
could be enforced under the doctrine of forum non
conveniens. Atlantic Marine, 134 S.Ct. at 580. The
Court, however, did not rule out the possibility of using
Rule 12(b)(6) as an enforcement mechanism. Id.
matter the procedural mechanism employed to enforce a valid
forum-selection clause, the inquiry presupposes a
valid forum-selection clause in the first instance.
In this case, Plaintiffs urge that the subject
forum-selection clause is not valid. The validity of a
forum-selection clause is determined by applying the test
articulated in M/S Bremen v. Zapata Offshore Co.,
407 U.S. 1 (1972), cited in Kostelac v. Allianz Global
Corp. & Specialty AG, 517 Fed.Appx. 670, 674-75
(11th Cir. 2013) .
Bremen analysis starts with the proposition that a
mandatory forum-selection clause is prima facie valid unless
it can be shown to be unreasonable under the circumstances of
the case. 407 U.S. at 10. Pertinent here, the Bremen
Court held that a forum-selection clause will be enforced
unless enforcement would "contravene a strong public
policy of the forum in which suit is brought."
Id. at 15; see also Kostelac, ...