Terrance D Rutherford v. FIA Card Services, N.A. et al

Filing 36

ORDER by Judge Dean D. Pregerson GRANTING Defendant Alaska Airlines Inc's Motion to Dismiss 21 , 23 , 35 . Any amended pleading shall be filed with fourteen days of the date of this order. (jp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TERRANCE D. RUTHERFORD,

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Plaintiff,
v.
FIA CARD SERVICES, N.A.,
ALASKA AIRLINES, INC.,
HORIZON AIR INDUSTRIES,
INC.,

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Defendants.
____________________________

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Case No. CV 11-04433 DDP (MANx)
ORDER GRANTING DEFENDANT ALASKA
AIRLINES, INC.’S MOTION TO
DISMISS

[Dkt. Nos. 21, 23, 35]

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Presently before the court are two Motions to Dismiss.

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motion filed by Defendant FIA Card Services, N.A. (“FIA” or “Bank

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of America”) argues that, under Washington law, Plaintiff has

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failed to allege the existence of a written contract, and thus his

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claims are time-barred.

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Defendants Alaska Airlines, Inc. and Horizon Air Industries, Inc.

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(collectively, “Alaska”), argues that as a matter of California

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law, Plaintiff’s claims must be dismissed.

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submissions of the parties, the court is inclined to grant Alaska’s

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motion and dismiss Plaintiff’s complaint with leave to amend.

(Dkt. No. 23).

The

The other motion, filed by

Having considered the

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I.

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Background
Plaintiff, a resident of California, works for Alaska, whose

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principal place of business is in Washington.

(Complaint ¶¶ 5, 7-

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8.)

(Id. ¶ 11.)

Alaska also does business in California.

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Alaska entered into a marketing partnership with FIA, which is

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organized under the laws of and has its principal place of business

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in Delaware.

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FIA issues “Alaska Airlines” branded credit cards and makes

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payments to Alaska.

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(Id. ¶¶ 6,12.)

As part of the marketing partnership,

(Id. ¶¶ 12, 15.)

Defendants instituted a credit card incentive program (“the

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Program”), under which Alaska employees were promised varying

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levels of payment for submitting credit card applications that FIA

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ultimately processed or approved.1

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the terms of the incentive program “through various means,”

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including web sites, emails, flyers, and “representatives from

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[FIA] and the airlines’ liason to [FIA].”

(Id. ¶ 20.)

Employees learned

(Id. ¶ 17.)

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Plaintiff alleges that these communications constitute a

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contract, under which FIA is bound to pay Alaska employees for each

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qualifying application.

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submitting applications in March 2005.

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alleges, however, that he has not been paid for the applications he

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has submitted

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submitted approximately 1,000 applications.

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approximately 509 applicants informed Plaintiff that their

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applications were approved, Plaintiff never received payment for

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submitting the applications.

(Id. ¶¶ 24, 26.)

(Id. ¶ 37.)

Plaintiff began

(Id. ¶ 5.)

Plaintiff

In 2007, for example, Plaintiff

(Id.)

(Id. ¶.)

Though

On May 23, 2011, Plaintiff

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A “processed” application contains enough information to
allow FIA to approve or reject the application. (Complaint ¶ 20.)
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filed the instant action, alleging causes of action for breach of

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contract and unjust enrichment.

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both claims.

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II.

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Defendants now move to dismiss

Legal Standard
A complaint will survive a motion to dismiss when it contains

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“sufficient factual matter, accepted as true, to state a claim to

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relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.

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Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 570 (2007)).

When considering a Rule 12(b)(6) motion, a court

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must “accept as true all allegations of material fact and must

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construe those facts in the light most favorable to the plaintiff.”

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Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

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complaint need not include “detailed factual allegations,” it must

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offer “more than an unadorned, the-defendant-unlawfully-harmed-me

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accusation.”

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allegations that are no more than a statement of a legal conclusion

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“are not entitled to the assumption of truth.” Id. at 1950. In

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other words, a pleading that merely offers “labels and

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conclusions,” a “formulaic recitation of the elements,” or “naked

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assertions” will not be sufficient to state a claim upon which

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relief can be granted. Id. at 1949 (citations and internal

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quotation marks omitted).

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Iqbal, 129 S. Ct. at 1949.

Although a

Conclusory allegations or

“When there are well-pleaded factual allegations, a court should

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assume their veracity and then determine whether they plausibly

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give rise to an entitlement of relief.” Id. at 1950. Plaintiffs

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must allege “plausible grounds to infer” that their claims rise

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“above the speculative level.” Twombly, 550 U.S. at 555-

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56. “Determining whether a complaint states a plausible claim for
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relief” is a “context-specific” task, “requiring the reviewing

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court to draw on its judicial experience and common sense.” Iqbal,

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129 S. Ct. at 1950.

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III.

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Discussion
This court, sitting in diversity, applies California’s choice

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of law rules to determine whether California or Washington law

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applies.

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622 F.3d 996, 1002 (9th Cir. 2010).

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different choice of law analyses.

Bridge Fund Capital Corp. v. Fastbucks Franchise Corp.,
California employs several

See Arno v. Club Med Inc., 22

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F.3d 1464, 1469 n. 6 (Noting conflict among California courts).

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Some courts, applying a statutory test under California Civil Code

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§ 1646, look to the place of performance or contract formation.

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See, e.g., Costco Wholesale Corp. v. Liberty Mutual Ins. Co., 472

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F.Supp.2d 1183, 1197 (S.D. Cal. 2007).

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Other courts have suggested, however, that California’s modern

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approach limits § 1646 analyses to matters of contract

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interpretation, and that other choice of law questions are more

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properly analyzed under a “governmental interests” analysis.

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Frontier Oil Corp. v. RLI Ins. Co., 153 Cal.App.4th 1436, 1459-1460

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(2007).

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seeking to invoke foreign law must establish that 1) the foreign

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law materially differs from California law, and 2) the

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jurisdictions’ interests in applying their own law truly conflict.

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Pokorny v. Quixtar, Inc., 601 F.3d 987, 994-995 (9th Cir. 2010);

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Washington Mutual Bank, FA v. Superior Court, 24 Cal.4th 906, 919

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(2001).

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competing interests and apply the law of the state whose interest

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stands to be most impaired.

Under the governmental interests analysis, the party

If there is a true conflict, the court must then weigh the

Id.
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In instances where the parties have not made a choice of law,

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as is the case here, some courts apply a third test, based on

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Section 188 of the Restatement (Second), Conflict of Laws.

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e.g. ABF Capital Corp. v. Berglass, 130 Cal.App.4th 825, 838

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(2005).

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formation, the place at which the contract was negotiated, the

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place of performance, the location of the contract’s subject

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matter, and the location of the parties.

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See,

The Section 188 approach looks to the place of contract

Id.

Here, however, the omission of certain facts from Plaintiff’s

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complaint renders it difficult for this court to make a choice of

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law determination, regardless of the test applied.

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fails, for example, to specify whether the purported contract

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alleged is written or oral.

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to the parties to the purported contract.

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Though Plaintiff argues that Alaska formed the contract in

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Washington (Opposition at 14), his argument contradicts his

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pleadings, which allege that FIA, a Delaware resident, made the

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unilateral offer to contract.

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nowhere in his complaint does Plaintiff allege that Alaska is

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itself a party to the purported contract.

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America . . . is bound by the terms of the contract”), 26 (“Bank of

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America is bound by the terms of a revised contract,”), 41 (“The

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unilateral offer to contract made by Bank of America was issued to

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Plaintiff.”).)

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that Alaska is merely an “intended beneficiar[y] of the contract

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between Bank of America and employees.”

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The complaint

Furthermore, the complaint is vague as

(Complaint at ¶ 41.)

Indeed,

(Compl. ¶¶ 24 (“Bank of

To the contrary, the complaint explicitly alleges

(Compl. ¶ 56.)

In light of these deficiencies, Plaintiff’s complaint is
dismissed, with leave to amend.

Should the facts of Plaintiff’s
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amended complaint fail to resolve the choice of law dispute,

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Defendants are free to seek a determination of applicable law from

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this court.

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IV.

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Conclusion
For the reasons stated above, Alaska’s Motion to Dismiss is

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GRANTED.2

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of the date of this order.

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IT IS SO ORDERED.

Any amended pleading shall be filed with fourteen days

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Dated: March 23, 2012
DEAN D. PREGERSON
United States District Judge

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FIA’s Motion to Dismiss, brought on the basis of Washington
law, is denied without prejudice.
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