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Turro v. Advanta Ira Administration, LLC

United States District Court, M.D. Georgia, Macon Division

November 5, 2019

DANIEL J. TURRO, et al., Plaintiffs,



         Before the Court is Defendant Advanta IRA Administration, LLC's (“Advanta”) Motion to Dismiss for Forum Non Conveniens, or, in the alternative, to Transfer Venue [Doc. 26]. For the following reasons, the Court GRANTS Advanta's Motion.[1]


         Plaintiff Daniel Turro opened a retirement account with Defendant Advanta. See [Doc. 19 at ¶¶ 7-10]. On July 31, 2018, Turro initiated two electronic funds transfers, attempting to transfer more than $140, 000 from his Advanta Individual Retirement Account (“IRA”) to his business accounts held at Wells Fargo. [Id. at ¶¶ 10-12]. Because the transfers did not process correctly, an Advanta employee sent an email to Turro explaining that the transfers did not go through. [Id. at ¶ 13]. But a hacker remotely intercepted that email. [Id. at ¶ 14]. Posing as Turro, the hacker then instructed Advanta's employee to modify the transfers by sending them to the hacker's account at a completely different financial institution. [Id. at ¶ 14, 21]. Turro alleges that Advanta failed to follow its own procedures and policies regarding electronic transfers so that it should replace the $140, 000 stolen by the hacker. Now, Advanta seeks dismissal from this case pursuant to the doctrine of forum non conveniens and, to support its Motion, directs the Court to a forum-selection clause in Turro's IRA contract requiring all litigation to take place in the District Court of Johnson County, Kansas, which is-to no one's great surprise-Advanta's hometown.

         When Turro initiated his financial relationship with Advanta, he signed a formal application for an IRA. [Doc. 36-2]. Pursuant to this application, Turro acknowledged that he received a copy of a Custodial Agreement and Disclosure Statement, along with other documents that outline and govern the terms and conditions of the relationship. [Doc. 36-2 at p. 4]; see also [Doc. 26-2]. Critical to this case, the first page of the Disclosure Statement contains the following provision:

Any lawsuit filed against or by Custodian or Administrator shall only be instituted in the district or county courts of Johnson County, Kansas, where Custodian maintains its principal office, and Depositor agrees to submit to such jurisdiction both in connection with any such lawsuit which Depositor may file and in connection with any lawsuit which Custodian or Administrator may file against Debtor.[2]

[Doc. 26-2 at ¶ 9.1]. Additionally, the Disclosure Statement provides that the agreement “is subject to all applicable federal laws and regulations and shall be governed by and construed under the applicable laws of the state of Kansas[.]” [Id.].

         By way of their Amended Complaint [Doc. 19], Plaintiffs acknowledge the fact that Advanta seeks enforcement of this forum-selection clause so that litigation will take place in Kansas. [Doc. 19 at ¶ 7]. Potentially, in an effort to evade any “forum non convenines” related argument that might be-and was, in fact-renewed in a subsequent motion to dismiss by Advanta, Plaintiffs allege that “if forced to litigate in Kansas, ” they “would be seriously inconvenienced, financially and otherwise[.]” [Id.].


         A. Standard of Review for Dismissal Based on Forum Non Conveniens

         When seeking dismissal under the doctrine of forum non conveniens, the movant “must demonstrate that (1) an adequate alternative forum is available, (2) the public and private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice.” GDG Acquisitions, LLC v. Gov't of Belize, 749 F.3d 1024, 1028 (11th Cir. 2014) (quoting Leon v. Millon Air, Inc., 251 F.3d 1305, 1310-11 (11th Cir. 2001)); see also Atl. Marine Const. Co. v. U.S. Dist Court for the Western Dist. Of Texas, 571 U.S. 49, 60 (2013) (explaining that in cases in which the transferee forum is still within the federal system, 28 U.S.C. § 1404(a) “is merely as codification of the doctrine of forum non conveniens” meant to replace the traditional remedy of outright dismissal with transfer). According to the Supreme Court, when there is an enforceable forum-selection clause, that clause should carry “near-determinative weight” when analyzing dismissal for forum non conveniens. GDG Acquisitions, 749 F.3d at 1028 (citing Atl. Marine Const. Co, 571 U.S. at 64). Specifically, “[w]hen parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation.” Id. (quoting Atl. Marine, 571 U.S. at 64). This waiver inevitably leads to the conclusion that “[w]hatever ‘inconvenience' [the parties] would suffer by being forced to litigate in the contractual forum as [they] agreed to do was clearly foreseeable at the time of contracting.” Atl. Marine, 571 U.S. at 64 (alterations in original).

         This Order will focus on three main issues. First, and crucial to the “forum non conveniens” analysis, the Court considers the enforceability of the parties' forum-selection clause. GDG Acquisitions, 749 F.3d at 1028-29. Second, the Court will consider the significance of the clause and why it supports the selected forum. Finally, the Court will discuss why Defendant SunTrust should not be bound by the forum-selection clause at issue.

         1. Enforceability of the Forum-Selection Clause

         In an attempt to sever Advanta's dismissal arguments under what has become known as the Bremen analysis, Plaintiffs contend that because there is “no admissible evidence in the record regarding Advanta's claimed selection clause, ” the “Court has no evidence in which to rely, ” and Advanta's Motion should therefore, be denied. [Doc. 26-1 at pp. 4-10]; [Doc. 31 at p. 6]. However, when attachments to a motion to dismiss are central to and pertain to documents referenced in a pleading, here Plaintiffs' Amended Complaint, district courts are allowed to consider them without converting the dismissal motion into one for summary judgment. Harvin v. JP Morgan Chase Bank, N.A., No. 1:15-CV-04477-MHC-JFK, 2016 WL 9450467, at *5-6 (N.D. Ga June 28, 2016); see also Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002) (“[T]he [C]ourt may consider a document attached to a motion to dismiss without converting the motion into one for summary ...

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