Allen et al v. Wyndham Vacation Resorts, Inc. et al (TV1)
MEMORANDUM OPINION: defendants' motion to dismiss [Doc. 40] will be GRANTED. Additionally, defendants' motion for summary judgment will be GRANTED in part and DENIED as moot in part. The Clerk will be DIRECTED to TRANSFER the remainder of this action to the Middle District of Florida and to CLOSE this case. Signed by District Judge Thomas A Varlan on March 31, 2021. (AYB) [Transferred from tned on 4/1/2021.]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
EDNA ALLEN, and
RESORTS, INC., and
This civil action, brought by plaintiffs Edna Allen and Vickie Allen-Hughes, is
before the Court on Defendants’ Motion to Dismiss the Third Amended Complaint
[Doc. 40] and Defendants’ Motion for Partial Summary Judgment [Doc. 48]. Plaintiffs
responded in opposition [Docs. 44, 51], and defendants replied [Docs. 17, 54]. This matter
is now ripe for the Court’s review.
For the reasons explained below, defendants’ motion to dismiss [Doc. 40] is
GRANTED, and defendants’ motion for summary judgment [Doc. 48] is GRANTED in
part and DENIED as moot in part. Because this Court does not have jurisdiction over
the remaining claims, the case will be transferred to the Middle District of Florida.
This cause of action arises out of plaintiffs’ purchase of Vacation Ownership
Interests (“VOI”) from Wyndham Vacation Resorts, Inc. (“WVR”) and its parent company
Wyndham Vacation Ownership, Inc (“WVO”) [Doc. 38 ¶¶ 14, 16]. Plaintiffs purchased
three VOIs, executing a separate contract for each: a 2011 purchase in Sevierville,
Tennessee [Id. ¶¶ 56–66], a 2012 purchase in Myrtle Beach, South Carolina [Id. ¶¶ 67–76],
and a 2014 purchase in Williamsburg, Virginia [Id. ¶¶ 77–83]. Plaintiffs brought this
complaint1 containing several claims against defendants, including intentional
misrepresentation, constructive fraud, breach of contract, negligent misrepresentation, and
fraudulent concealment, in addition to violations of the Tennessee Timeshare Act, T.C.A.
§ 66-32-101 [See Doc. 38].
Defendants move to dismiss several of plaintiffs’ claims. First, defendants state that
this Court lacks personal jurisdiction over the South Carolina and Virginia VOIs and move
for dismissal or transfer of those claims to a proper venue [Doc. 40 ¶ 4, 8]. Second,
defendants state that the fraud-based claims are barred by Tennessee’s three-year statute of
limitations [Id. ¶ 9]. Third, defendants argue that the claims for violation of the Tennessee
Timeshare Act are barred by the four-year statute of repose [Id. ¶ 10]. Defendants move
for summary judgment [Doc. 48] for many of the same reasons and additionally argue that
plaintiffs’ breach of contract claim fails because plaintiffs do not, and cannot, point to a
term of the agreement that defendants allegedly breached [Id. ¶ 8].
References to the “complaint” indicate the Third Amended Complaint [Doc. 38].
Defendant files its motions under Federal Rules of Civil Procedure 12(b)(2),
12(b)(6), and 56. The Court will first analyze plaintiffs’ claims under Rule 12(b) and then
address any remaining claims under Rule 56.
First, defendant moves for dismissal pursuant to Rule 12(b)(2) for lack of personal
jurisdiction. A federal plaintiff bears the burden of establishing the existence of personal
jurisdiction. Air Prods. & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544, 549 (6th Cir.
2007) (citing Serras v. First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989)).
The Court finds it unnecessary to conduct an evidentiary hearing on the basis of personal
jurisdiction. Accordingly, the Court must consider the pleadings and affidavits in a light
most favorable to plaintiff, and dismissal under Rule 12(b)(2) is “proper only if all the
specific facts which [plaintiff] allege[es] collectively fail to state a prima facie case for
CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996).
However, the Court need not “ignore undisputed factual representations of the defendant
which are consistent with the representations of the plaintiff.” Kerry Steel, Inc. v. Paragon
Indus., Inc., 106 F.3d 147, 153 (6th Cir. 1997). And, once a defendant submits “affirmative
evidence showing that the court lack[s] jurisdiction, mere allegations of jurisdiction are not
enough;” rather, a plaintiff must “set forth, by affidavit or otherwise, specific facts showing
jurisdiction.” Parker v. Winwood, 938 F.3d 833, 839–40 (6th Cir. 2019).
Second, as for Rule 12(b)(6) motions, Rule 8(a)(2) sets out a liberal pleading
standard. Smith v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004). Thus, pleadings
in federal court need only contain “‘a short and plain statement of the claim showing that
the pleader is entitled to relief,’ in order to ‘give the [opposing party] fair notice of what
the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual
allegations are not required, but a party’s “obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions.” Id. (alterations in
original). “[A] formulaic recitation of the elements of a cause of action will not do,” nor
will “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555, 557).
In deciding a Rule 12(b)(6) motion, the court must determine whether the complaint
contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 570; accord Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). This
assumption of factual veracity, however, does not extend to bare assertions of legal
conclusions, Iqbal, 556 U.S. at 679, nor is the Court “bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. Determining whether a complaint states a plausible claim
for relief is ultimately “a context-specific task that requires [the Court] to draw on its
judicial experience and common sense.” Id. at 679. In conducting this inquiry, the Court
“must construe the complaint in a light most favorable to plaintiff[ ], accept all well-pled
factual allegations as true, and determine whether plaintiff[ ] undoubtedly can prove no set
of facts in support of those allegations that would entitle [her] to relief.” Bishop v. Lucent
Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008) (citing Harbin-Bey v. Rutter, 420 F.3d 571,
575 (6th Cir. 2005)).
Third, Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court
shall grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” In ruling on
a motion for summary judgment, the court must draw all reasonable inferences in favor of
the nonmoving party. McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
The moving party bears the burden of establishing that no genuine issues of material fact
exist and may meet this burden by affirmatively proving their case or by highlighting the
absence of support for the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317,
323–25 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003).
Yet, “[o]nce the moving party presents evidence sufficient to support a motion under
Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations.”
Curtis Through Curtis v. Universal Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn.
1991) (citing Celotex, 477 U.S. at 317). To establish a genuine issue as to the existence of
a particular element, the nonmoving party must point to evidence in the record, including
depositions, documents, affidavits, and other materials, upon which a reasonable finder of
fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see
also Fed. R. Civ. P. 56(c)(1)(A). There must be more than a “mere scintilla of evidence”
to withstand a motion for summary judgment, Smith Wholesale Co. v. R.J. Reynolds
Tobacco Co., 477 F.3d 854, 861 (6th Cir. 2007), and any genuine issue of fact must also
be material; that is, it must involve facts that might affect the outcome of the suit under the
governing law. 477 U.S. at 248. If a reasonable juror could not find for the nonmovant,
the Court must grant summary judgment. Celotex, 477 U.S. at 323.
Personal Jurisdiction and Venue Transfer
“A federal district court sitting in diversity must apply the law of the forum
state to determine whether it may exercise jurisdiction over the person of a nonresident defendant.” Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir. 1991).
Tennessee courts are permitted to exercise personal jurisdiction upon “[a]ny basis not
inconsistent with the constitution of this state or of the United States.” Tenn. Code Ann.
The due process requirements of the Tennessee Constitution are
“co-extensive with those of the United States Constitution.” State v. NV Sumatra Tobacco
Trading Co., 403 S.W.3d 726, 741 (Tenn. 2013) (citation omitted); Bridgeport Music, Inc.
v. Still N The Water Pub., 327 F.3d 472, 477 (6th Cir. 2003) (“The Tennessee long-arm
statute has been interpreted as coterminous with the limits on personal jurisdiction imposed
by the due process clause”). Therefore, if the exercise of personal jurisdiction passes
constitutional muster under the United States Constitution, it is permissible under
Tennessee law. Id. at 740–41.
Federal “[d]ue process requires that a defendant have ‘minimum contacts . . . with
the forum State . . . such that he should reasonably anticipate being haled into court there.’”
Schneider v. Hardesty, 669 F.3d 693, 701 (6th Cir. 2012) (quoting World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 291, 297 (1980)). This requirement “ensures that the
exercise of jurisdiction does not offend traditional notions of fair play and substantial
justice.” Id. (citations omitted) (internal quotation marks omitted).
The Court will first analyze personal jurisdiction over defendants WVR and WVO
with regard to a sub-set of plaintiffs’ claims. Because the Court ultimately concludes that
it lacks jurisdiction over these claims, the Court will transfer the matter to a district in
which jurisdiction is proper.
“A court may assert general jurisdiction over foreign (sister-state or
foreign-country) corporations to hear any and all claims against them when their
affiliations with the State are so ‘continuous and systematic’ as to render them essentially
at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.
915, 919 (2011) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 317 (1945)).
Defendants admit they “have some tie to Tennessee in the form of timeshare resorts,
offices, and customer contact” [Doc. 41 p. 6]. The complaint additionally references:
(1) at least four timeshare properties and other resorts in Tennessee, (2) several offices in
Tennessee including in Nashville, Crossville, and Sevierville, (3) large scale marketing and
sales within the state, (4) marketing and sales of services and products using the internet to
Tennessee residents, (5) and the maintenance of employees within the state [Doc. 38 ¶ 5].
However, merely doing business in a particular state is not sufficient to establish general
personal jurisdiction. Id. at 139 n.20.
Though the complaint alleges defendants have continuous and systematic contacts
with Tennessee [Doc. 38 ¶ 5(e)], plaintiffs do not address and do not appear to argue for
general jurisdiction over defendants in their response, instead beginning their briefing with
specific jurisdiction. Plaintiffs admit defendants are incorporated in Delaware and have
their principal place of business in Florida [Doc. 38 ¶¶ 2–3] and the Supreme Court has
indicated that a corporation may very rarely be deemed “at home” in a state where it is not
incorporated and does not have its principal place of business. Daimler, 571 U.S. at
138–39. This Court does not, therefore, possess general personal jurisdiction over these
In contrast to general jurisdiction, “specific jurisdiction is confined to adjudication
of issues deriving from, or connected with, the very controversy that establishes
jurisdiction.” Indah v. S.E.C., 661 F.3d 914, 920 (6th Cir. 2011) (quoting Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)) (internal quotation
marks omitted). The Sixth Circuit applies a three-part test for determining whether an
exercise of specific jurisdiction falls within constitutional limits: (1) “the defendant must
purposefully avail himself of the privilege of acting in the forum state;” (2) “the cause of
action must arise from the defendant’s activities there;” and (3) “the acts of the defendant
or consequences caused by the defendant must have a substantial enough connection with
the forum state to make the exercise of jurisdiction over the defendant reasonable.”
S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968); see also Conti v.
Pneumatic Prods. Corp., 977 F.2d 978, 981 (6th Cir. 1992).
The second prong is determinative in this case and is satisfied “if a defendant’s
contacts with the forum state are related to the operative facts of the controversy.”
CompuServe, Inc., 89 F.3d at 1262. “Only when the operative facts of the controversy are
not related to the defendant’s contact with the state can it be said that the cause of action
does not arise from that contract.” Calphalon Corp. v. Rowlette, 228 F.3d 718, 723–24
(6th Cir. 2000). This prong “does not require that the cause of action formally ‘arise from’
defendant’s contacts with the forum” but “only ‘that the cause of action . . . have a
substantial connection with the defendant’s in-state activities.’” Third Nat. Bank in
Nashville v. WEDGE Group Inc., 882 F.2d 1087, 1091 (6th Cir. 1989) (quoting Mohasco
Industries, 401 F.2d at 384 n.27) (emphasis original). Yet, “more than mere but-for
causation is required to support a finding of personal jurisdiction. To the contrary, the
plaintiff’s cause of action must be proximately caused by the defendant’s contacts with the
forum state.” Beydoun v. Wataniya Rests. Holding, Q.S.C., 768 F.3d 499, 507 (6th Cir.
2014). If only but-for causation were required, it would be “vastly overinclusive in its
calculation of a defendant's reciprocal obligations” and would have “no limiting principle;
it literally embraces every event that hindsight can logically identify in the causative
chain,” resulting in “no meaningful relationship to the scope of the ‘benefits and protection’
received from the forum.” Id. at 508.
Plaintiffs, in their complaint and briefs, identify three potential connections between
the Tennessee contract and the causes of action relating to the South Carolina and Virginia
VOIs that may establish this prong: (1) the Virginia VOI sales agent indicated that another
purchase would cure problems with the prior VOIs, (2) the contracts rolled into, and are
dependent upon, one another, and (3) the plaintiffs were using points purchased from the
prior VOI and defrauded into purchasing the subsequent VOI while on that vacation. None
of these theories establish specific personal jurisdiction.
First, plaintiffs’ complaint makes vague reference to plaintiff’s previous contract.
The Court notes that plaintiffs did not make this argument in the briefing, but in an effort
to view the pleadings and evidence in a light most favorable to plaintiff, the Court will
address it nonetheless.
The plaintiffs’ complaint begins with general information and facts relating to the
events, including sections entitled “Common Participation in Scheme to Defraud” and
“Consumer Affairs Complaints/ Notice of Wrongful Conduct” [Doc. 38 pp. 6, 9]. The next
several sections detail the allegations as they relate to the three VOI purchases. In
Tennessee, they were invited to an owner update meeting where sales agents made a series
of approximately seven allegedly false or misleading statements, resulting in plaintiffs
purchasing a timeshare that day [Id. at ¶¶ 56–66]. Addressing the South Carolina VOI, the
complaint states an agent “ended up giving the Plaintiffs a sales presentation” which
included telling plaintiffs that “since they upgraded in Sevierville, they would no longer be
able to stay in Myrtle Beach” [Id. at ¶¶ 67–68]. The agent said that, because plaintiffs had
so many points, they should upgrade again for only a “little more money” which would
allow them to visit Myrtle Beach and receive many amenities and perks [Id. at ¶¶ 69–72].
Plaintiffs purchased the South Carolina VOI [Id. at ¶ 76] and allege approximately seven
false or misleading statements during the course of the sales presentation. Discussing the
Virginia VOI, plaintiffs state that they were invited to an owner update meeting where
approximately four allegedly false or misleading statements were made, including that a
purchase would “fix any and all problems caused by previous purchases” [Id. at ¶¶ 77–83].
This reference to previous purchases is the only reference in these sections about a
connection between the VOIs.
Though this reference about correcting problems with the previous purchases thinly
ties back to the Tennessee purchase, the operative facts of the misrepresentations made,
and the execution of the contracts at issue, did not occur in Tennessee. This vague
reference does not establish a substantial enough connection such that the causes of action
based on the South Carolina and Virginia VOIs were proximately caused by the
defendants’ contacts in Tennessee.
Plaintiffs file this complaint as a result of many allegedly misleading statements as
a whole. [Id. at ¶ 121 (stating that they would not have purchased the timeshares had the
undisclosed information been disclosed)]. The vast majority of the complaint does not
indicate a dependence on the previous contract or causal relationship between the
purchases. The complaint alleges, as to the purchase of the third VOI, that they were misled
to believe that a further purchase could correct prior problems, but the complaint does not
contain such an allegation with regard to the second VOI, which indicates that the three
VOI contracts were independent of one another. That plaintiffs may have been lied to or
defrauded in three separate places by the same defendants does not establish a sufficient
casual connection. Additional fabricated misrepresentations by sales representatives, and
plaintiffs’ resulting misconceptions, about a prior contract do not retroactively create the
causation necessary to connect these causes of action to Tennessee.
Second, plaintiffs argue there is a connection with Tennessee because that contract
was “directly rolled into [sic] South Carolina contract that was itself rolled into the Virginia
contract” [Id.]. Instead of citing the specific provisions of the contracts that “referenced
the prior contract numerous times and describes its ‘equity’ and rolling into the more recent
contracts,” plaintiffs state generally “See Exhibit[s] A, B, C to Defendants [sic] Motion to
Dismiss” [Id.]. The Court has reviewed the sixteen (16) pages of contracts and cannot
determine the relevant provisions. Plaintiffs state that the VOI contracts are “rolled into”
one another, which is how the timeshares are “’upgraded’ without having multiple
standalone timeshare ownerships” and that the contracts became a part of one another [Id.].
However, in the Court’s view, nothing from the contracts indicates the incorporation of
prior documents or that the contracts are dependent upon each other. Plaintiffs’ general
instruction to “see” the documents as evidence of their dependence is not sufficient to
demonstrate the connection required to justify bringing defendants into this Court.
The complaint also mentions this process and alleges verbal representations by sales
agents that plaintiffs had equity they could “roll” into a new purchase [Id. at ¶¶ 88(b),
159(g), 176]. Even assuming that such statements were made, viewing the pleadings in
the light most favorable to plaintiffs, this does not establish jurisdiction. Plaintiffs do not
sufficiently explain what it means that the equity “rolls into” another contract either by
citing provisions in the contract or explaining how that process works and how it caused
plaintiffs to make subsequent purchases. Plaintiffs’ allegations are “not enough” as they
must set forth “specific facts showing jurisdiction,” which they have not done with regard
to this theory. Parker, 938 F.3d at 839–40.
In arguing for a connection between the contracts, plaintiffs state in their briefing
that “each action that happened” in South Carolina “could not have possibly happened to
them without the Tennessee contract and the acts that occurred in Tennessee and the same
with Virginia” and that “[h]ad fraud and timeshare act violations not occurred in
Tennessee, further fraud and timeshare act violations would [not] have and could not have
happened” [Id. at pp. 4–5]. However, plaintiffs misconceive the type of causation required
for jurisdiction. But for the Tennessee misrepresentations, the plaintiffs may not have
purchased the second VOI for a variety of reasons; plaintiffs do not indicate that any
particular misrepresentations caused later purchases in their complaint.
Tennessee contract may be the first in a sequence of events, plaintiffs do not establish a
substantial enough connection or sufficient proximate causation. For instance, plaintiffs
do not argue that the fraud of sales agents in South Carolina and Virginia was the result of
fraud in Tennessee. Instead, plaintiffs argue that, through a more tenuous and distant series
of events, plaintiffs purchased several VOIs.
While plaintiffs may have fallen victim to the same sales tactics several times, there
is not a connection between the three purchases. Even if the original Tennessee sales agent
had indicated that the equity would “roll into” later purchases, by plaintiffs’ argument,
there would be no limiting principle, and personal jurisdiction would always lie in some
state further up the chain of contracts. It would “literally embrace every event that
hindsight can logically identify in the causative chain” which is precisely what the Sixth
Circuit sought to avoid in Beydoun. 768 F.3d at 507. Accordingly, this theory does not
establish specific personal jurisdiction.
Finally, plaintiffs argue that personal jurisdiction exists because plaintiffs were
using their points to stay at a Wyndham resort and, during their stay, they purchased the
subsequent VOI [Doc. 44 p. 5]. Plaintiffs provide no legal authority supporting jurisdiction
on this basis. This connection is insufficient to hold that this Court has personal jurisdiction
over defendants for claims relating to events that occur wherever plaintiffs may have
chosen to stay.
Overall, plaintiffs’ arguments fail to establish specific personal jurisdiction.
Though plaintiffs argue that the contracts are interrelated, they have failed to support their
assertions by providing facts demonstrating jurisdiction. Parker, 938 F.3d at 839–40. That
the events in Tennessee were the first in a chain of similar events does not make it the
proximate cause of such events. Moreover, that the plaintiffs were “impacted in Tennessee
by the Wyndham Defendants’ actions in [South Carolina and Virginia] is insufficient to
establish that the operative facts of the [plaintiffs’] claims arose out of Tennessee.” Bobick
v. Wyndham Worldwide Operating, Inc., No. 3:18-CV-00514, 2018 WL 4566804, at *7
(M.D. Tenn. Sept. 24, 2018). Plaintiffs state that there “is most certainly a causal link,”
[Doc. 44 p. 5] but in light of plaintiffs’ inability to make a prima facie showing, even
viewing the pleadings and affidavits most favorably to plaintiffs, the Court finds otherwise.
Moreover, on each of plaintiffs’ theories of personal jurisdiction, the Court finds
that the exercise of jurisdiction over these defendants would not be reasonable, in that these
defendants have not had sufficient minimum contacts with the state for the exercise of
personal jurisdiction to “comport with traditional notions of fair play and substantial
justice.” CompuServe, 89 F.3d at 1267–68 (internal citation and quotation marks omitted).
Defendants, Delaware corporations and Florida residents, cannot be expected to be brought
into court in Tennessee to defend against allegations lodged by North Carolina residents
over allegedly tortious conduct in South Carolina and Virginia. The connections are too
tenuous. Plaintiffs have failed to meet their burden in demonstrating that this Court
possesses specific personal jurisdiction over defendants relating to any causes of action
arising from the South Carolina and Virginia VOIs, and the Court will, therefore, GRANT
defendants’ motion as to these claims pursuant to Rule 12(b)(2).
Upon a finding that this Court lacks personal jurisdiction, defendants request
dismissal of these claims, or in the alternative, transfer to a judicial district in which one or
more of the defendants is subject to personal jurisdiction [Doc. 41 p. 13] and plaintiffs
request transfer of the case “to the appropriate court” [Doc. 44 p. 6].
When a Court finds a lack of jurisdiction, 28 U.S.C. § 16312 authorizes transfer “in
the interest of justice” to a court “in which the action . . . could have been brought at the
time it was filed.” See Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir. 2003) (holding that
§ 1631 “applies to federal courts identifying any jurisdictional defect, regardless of whether
it involves personal or subject matter jurisdiction.”). Though defendants request dismissal
of the claims for which this Court lacks personal jurisdiction, the Court does not find
dismissal to be appropriate, as it has not reached the merits. This is particularly true when
the outcome of several claims may depend on the statute of limitations. Jackson v. L & F
Martin Landscape, 421 F. App'x 482, 484 (6th Cir. 2009) (“[T]he reasons for transferring a
case to a proper forum rather than dismissing are especially compelling if the statute of
limitations has run since the commencement of the action, so that dismissal might prevent
the institution of a new suit by the plaintiff and a resolution on the merits.”); Roman,
340 F.3d at 328 (Section 1631 may “protect a plaintiff against either additional expense or
the expiration of a relevant statute of limitations in the event that the plaintiff makes an
Plaintiffs do not identify under which venue transfer statute they seek relief. Defendants’
brief mentions 28 U.S.C. § 1406 which authorizes transfer “in the interest of justice” if a case is
filed in the incorrect venue. However, the Court recognizes its authority to transfer the case sua
sponte and finds transfer under 28 U.S.C. § 1631 more appropriate to address the specific issues
of this case regarding personal jurisdiction. Flynn v. Greg Anthony Constr. Co., 95 F. App'x 726,
738 (6th Cir. 2003) (“Congress has enacted a number of statutes that give federal courts the power
to transfer cases sua sponte;” and noting that the Supreme Court has not recognized lack of
personal jurisdiction alone as sufficient to invoke a § 1406 transfer).
error in trying to select the proper court within the complex federal court system.”). Under
section 1631, the action “shall proceed as if it had been filed in or noticed for the Court to
which it is transferred on the date upon which it was actually filed in or noticed for the
court from which it is transferred.” Accordingly, the Court finds it in the interests of justice
to transfer the case pursuant to § 1631 to cure want of jurisdiction.
Plaintiffs do not identify a court in which the case may have been brought originally
or to which district they would prefer the case be transferred. Defendants stated that they
“were, at all relevant times, located exclusively in Orlando, Florida, which is in the Middle
District of Florida” [Doc. 41 p. 12]. As previously mentioned, defendants have their
principal place of business in Orlando, Florida [Doc. 38 ¶¶ 2–3]. The Middle District of
Florida therefore has general personal jurisdiction over the defendants who may be deemed
to have continuous and systematic affiliations with the state to render them at home.
28 U.S.C. § 89 (establishing that the Middle District of Florida encompasses the city of
Orlando); Goodyear, 564 U.S. at 919; Daimler, 571 U.S. at 138–39. This also satisfies the
venue statute, as both defendants reside at the same address within that district [Id.].
18 U.S.C. § 1391(b)(1) (“a civil action may be brought in a judicial district in which any
defendant resides, if all defendants are residents of the State in which the district is
located”), § 1391(c)(2) (“an entity . . . shall be deemed to reside, if a defendant, in any
judicial district in which such defendant is subject to the court’s personal jurisdiction with
respect to the civil action in question.”). All claims relating to the Tennessee VOI are
dismissed in the remainder of this opinion as discussed below. Therefore, the only
remaining claims in this case are those relating to the South Carolina and Virginia VOIs.
Accordingly, the Court will transfer the remainder of the case to the Middle District of
Statute of Limitations
Defendants move to dismiss plaintiffs’ intentional misrepresentation, constructive
fraud, negligent misrepresentation and fraudulent concealment claims, pursuant to Rule
12(b)(6) as barred by the statute of limitations [Doc. 40 p. 5]. Defendants state Tenn. Code
Ann. Section 28-3-105 creates a three-year statute of limitations for these fraud-based
claims. Under Tennessee law, “[a] defense predicated on the statute of limitations triggers
the consideration of three components—the length of the limitations period, the accrual of
the cause of action, and the applicability of any relevant tolling doctrines.” Redwing v.
Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 457 (Tenn. 2012).
The applicable consideration here is the date on which the plaintiffs’ claims accrued,
or when the applicable statute of limitations began to run. Under the discovery rule, the
cause of action accrues when plaintiff has actual knowledge of a claim or is put on
constructive or inquiry notice, meaning plaintiffs have “actual knowledge of facts
sufficient to put a reasonable person on notice that he [or she] has suffered an injury as a
result of wrongful conduct.” Id. at 459. “[I]nquiry notice charges a plaintiff with
knowledge of those facts that a reasonable investigation would have disclosed” meaning
that once a plaintiff “gains information sufficient to alert a reasonable person of the need
to investigate the injury, the limitation period begins to run.” Id. (citations omitted).
Addressing the third consideration, the statute of limitations “is tolled only
during the period when the plaintiff has no knowledge that a wrong occurred, and, as a
reasonable person is not put on inquiry.” Graham v. Lake Park Condo-Signal View,
Nos. E2011–02739–COA–R3–CV, E2012–00434–COA–R3–CV, 2013 WL 5974921 at
*4 (Tenn. Ct. App. Nov. 8, 2013). Accordingly, the discovery rule “does not delay the
accrual of a cause of action . . . until the plaintiff knows the full extent of the damages” or
“discovery of all the facts that affect the merits of his or her claim” Id.; see also Cagle v.
Hybner, No. M2006-02073-COA-R3-CV, 2008 WL 2649643 at *14 (Tenn. Ct. App.
July 3, 2008) (“a plaintiff is not permitted to delay filing suit until all the injurious effects
or consequences of the alleged tortious conduct are fully known.”). The Tennessee
Supreme Court has held “that there is no requirement that the plaintiff actually know the
specific type of legal claim he or she has, or that the injury constituted a breach of the
appropriate legal standard.” Citicorp Mortgage Inc. v. Roberts, No. 02S019712CH00109,
1998 WL 690839 at *3 (Tenn. Oct. 5, 1998). To determine whether the statute of
limitations is tolled,
the issue of whether the plaintiff exercised reasonable care and diligence in
discovering the injury or wrong is usually a fact question. Where, however,
the undisputed facts demonstrate that no reasonable trier of fact could
conclude that the plaintiff did not know, or in the exercise of reasonable care
and diligence should have known, that he sustained an injury as a result of
the defendant’s wrongful conduct, dismissal of the complaint is appropriate.
Cagle, 2008 WL 2649643 at *14.
Defendants argue that in invoking the discovery rule at the dismissal stage, plaintiffs
have not met their burden to allege “any facts or events which tend to suggest [p]laintiff
did not know or had no reason to know of the alleged events...” because their allegations
are conclusory and vague [Doc. 41 p. 15].
Phillips v. Nationstar Mortgage, LLC,
No. 3:13-cv-01414, 2016 WL 2866164, at *6 (M.D. Tenn. May 17, 2016). Plaintiffs allege
in the complaint that they “did not discover the extent of the fraud that had occurred until
July of 2015 when visiting a Wyndham site” [Doc. 38 ¶ 107] and state in their briefing that
they did not understand the “full extent of the fraud perpetrated upon them until they
contacted legal counsel in July of 2015” [Doc. 44 p. 8]]. Only upon contacting counsel
were they “able to investigate and discover the extent of the fraud” [Id.]. Plaintiffs’ state
that they did not discover the harm done until a later date as a result of defendants
concealing various facts, including that the timeshare was not an investment, it could not
be rented, the return rate was lower than stated, there was no after-market value,
reservations were difficult to come by, and the rooms were being rented on their website
for a lower cost thereby decreasing exclusivity of timeshare ownership [Doc. 44 pp. 7–8].3
Contrary to plaintiffs’ allegations, they need not know the full extent of the fraud
for the statute of limitations to begin to run, as previously discussed. Redwing, 363 S.W.3d
at 459. That plaintiffs were previously aware of some fraud puts them on notice that, had
plaintiffs exercised reasonable care and diligence, the injury should have been discovered.
As discussed below, at least one of the claims was not concealed as evidenced by the
Plaintiffs’ action in seeking counsel tends to indicate some prior knowledge of an injury
requiring legal advice or assistance in filing a suit. The point at which plaintiffs were
injured by being unable to obtain a reservation, rent their unit, or receive the desired
investment return, is when plaintiffs became aware of their injury or had gained actual
knowledge of facts sufficient to put a reasonable person on notice that they have suffered
Plaintiffs do not indicate when they first became aware of these various injuries.
The parties entered into a tolling agreement dated January 11, 2017, and defendants state
that the agreement provides that claims already barred as of the effective date of the
agreement remain barred [Doc. 41 p. 15].4 Accordingly, if claims were preserved as of
January 2017, claims would accrue and statute of limitations would begin to run in
January 2014. By January 2014, plaintiffs had already purchased the second timeshare in
South Carolina in 2012. It is therefore highly likely that the parties had already encountered
difficulties in making reservations or in attempting to rent their unit by this point, having
already been in the program for several years. Paragraph 146(c) of the complaint indicates
that plaintiffs were told that an upgrade would increase their reservation power “but
Plaintiffs found that that [sic] they could not, and they did not have any better success in
getting reservations, which was already poor.” This indicates that plaintiffs had already
experienced the alleged injury of difficulty with obtaining reservations. However, because
Neither party provided a copy of the agreement, but its effect is of no consequence here
as the statute of limitations had already run.
no specific allegations have been made in the complaint to determine conclusively from
which date the discovery rule applies, the Court turns to the contract at issue.
Defendants argue that plaintiffs entered into the Tennessee VOI on July 2, 2011,
and that contract contains provisions stating that no representations outside of the purchase
agreement would be binding on the parties [Doc. 40-1 ¶ 17 (“This Agreement, and any and
all other documents executed at the same time as this Agreement, constitutes the entire
agreement between the parties hereto. No representation or warranties, oral or written,
other than the representations set forth in said documents, have been relied upon by the
parties.”)]. Defendants argue that, because plaintiffs are presumed to have understood and
consented to the language in the agreement, this means that plaintiffs should be aware that
any oral representations would not be included in the agreement and plaintiffs would have
been on notice of written terms that directly refuted the alleged oral misrepresentations at
the time of signing the purchase agreement [Doc. 41 pp. 14–15]; Church v. Perales,
39 S.W.3d 149, 161 (Tenn. Ct. App. 2000) (“[T]he law presumes that persons who sign
documents, having been given an opportunity to read them, are bound by their
signatures.”); see also Giles v. Allstate Ins. Co., 871 S.W.2d 154, 157 (Tenn. Ct. App.
1993) (“It will not do, for a man to enter into a contract, and, when called upon to respond
to its obligations, to say that he did not read it when he signed, or did not know what it
contained.”). Accordingly, defendants argue, these claims should have been filed no later
than July 2, 2014.
Plaintiffs were on notice of their fraud-based claims as of the date of execution of
The written provisions of the contract directly contradict the oral
representations of the sales representatives. For example, the complaint states that the
Tennessee Wyndham sales representative “said the Plaintiffs could make a large sum of
money renting the timeshare” [Doc. 38 ¶ 61] while the contract stated, in a section entitled
Non-Investment Purchase, “Owner represents that Owner is purchasing an Ownership for
the purpose of recreational and social use, and not for financial profit” [Doc. 40-1 ¶ 12)].
This contradiction should have placed the plaintiffs on notice of the questionable nature of
the representations regarding investment potential and plaintiffs’ potential profits.5
Plaintiffs cite the Court’s ruling in Burgess v. Bluegreen Vacations Unlimited
[Doc. 33, 3:18-cv-119-HSM-DCP] as support that the contract does not put the plaintiff on
notice of the harm done to them per se [Doc. 44 p. 8]. However, plaintiffs misinterpreted
the arguments made in that case and its application here. The Court did not hold that a
contract does not necessarily put the plaintiffs on notice of the harm; defendants in that
case did not raise arguments about the terms of the contract itself. Instead, the defendants
argued that the statute of limitations began on the date the misrepresentations were made.
The Court therein noted that the claims did not accrue on the date of the misrepresentations
Defendants additionally cite an order from the Chancery Court for Davidson County,
Tennessee, Boy v. Wyndham et al., 18-839-III, which stated “[t]he Court further finds that the
discovery rule did not toll the statute of limitations for Plaintiff's’ fraud-related claims because the
terms of the sales contract put the plaintiffs on notice of the alleged wrongs or contradictions that
form the basis of these claims.” The Court includes this reference as further support of its approach
and discussed the discovery rule. The Court held that a plaintiffs’ specific allegation that
“shortly after the purchase, but not more than three years ago, Plaintiff discovered the full
extent of the falsity of these representations and the true intent of the Defendant” was “too
conclusory and lack[ed] a factual predicate from which the discovery rule can be applied,”
so the Court looked to the pleadings in their entirety, including the contracts at issue. The
Court did not reference terms of the contract in its order, instead analyzing the oral
representations of the sales agents. In that case, plaintiff had been led to believe she could
use membership points to make reservations and sublease them, so the Court held that
plaintiff may not have known of the falsity of the sales person’s representations until
plaintiff attempted to make a reservation some time before the points’ expiration. Because
the expiration date was one year after the purchase, the Court held under the discovery rule,
such was the date that the statute of limitations began to run. Accordingly, one year after
the date of the misrepresentations is representative of the latest point at which plaintiffs
may first have been injured or on notice to investigate their injury as it relates to the
misrepresentations regarding reservation capabilities.
Using such considerations here, and applying the discovery rule from July 2, 2012,
one year after the contract was executed,6 plaintiffs’ claims are still not within the statute
of limitations, as this action was filed in 2018 with the tolling agreement effective
The contract states that points are renewed annually throughout the term of the ownership
[Doc. 40-1 ¶ 10(b)]. It is not clear from this document that this indicates the previously accrued
points expire at the point of renewal. However, the Court takes the parties’ arguments for the
applicability of this case to indicate the same applies in the present contract. Additionally, since
the applicability of the Burgess case is not determinative of this issue, the Court does not find it
critical to determine the expiration policy of these points for purposes of this analysis.
January 2017. Nevertheless, application of Burgess is not even necessary in this case, as
here the contract’s plain terms create a contradiction.
Whether analyzed under the specific allegation plaintiffs make regarding the statute
of limitations (too vague but most likely before the second purchase), the pleadings as a
whole and applying Burgess at plaintiffs’ behest (July 2, 2012), or analyzing the terms of
the contract (July 2, 2011), the claims accrued and statute of limitations had run by the time
plaintiffs entered into the tolling agreement. The Court finds that no reasonable trier of
fact could conclude that plaintiffs did not know, or in the exercise of reasonable care and
diligence should not have known, that they sustained an injury before January 2014, and
therefore dismissal is appropriate. Accordingly, plaintiffs’ fraud-related claims, Counts I,
II, IV, and V, are barred by the applicable statute of limitations, and to the extent that they
relate to the Tennessee VOI, such claims are DISMISSED pursuant to Rule 12(b)(6) for
failure to state a claim.
Tennessee Timeshare Act
Defendants move to dismiss the plaintiffs’ Tennessee Timeshare Act (“TTSA”)
claim, Count VI, pursuant to Rule 12(b)(6) as untimely and barred by the four-year statute
of repose [Doc. 40 p. 5]. Defendant states the Tennessee legislature created a statute of
repose which reads:
A judicial proceeding where the accuracy of the public offering statement or
validity of any contract of purchase is in issue and a rescission of the contract
or damages is sought must be commenced within four (4) years after the date
of the contract of purchase, notwithstanding that the purchaser’s terms of
payments may extend beyond the period of limitation.
Tenn. Code. Ann. § 66-32-119. Defendants therefore state that the action must have been
filed within four years of the date of execution of the contract, which was executed on
July 2, 2011. Defendants again assert that the tolling agreement does not protect claims
already barred as of its effective date [Doc. 41 p. 18].
Plaintiffs respond that the TTSA does not create a statute of repose, as the section
defendants reference is titled “statute of limitations.” Plaintiffs argue neither the text itself
nor the defendants’ briefing contains any evidence that it was intended to be a statute of
repose. A statute of repose, plaintiffs contend, includes two “telltale signs:” “two dates
[one for limitations, one for repose] or language such as ‘notwithstanding any exceptions
to these provisions [the action] must be brought within . . .’; ‘in no event’; or ‘in any event’”
[Doc. 44 p. 10]. Plaintiffs therefore argue that they have properly pled this claim under the
discovery rule, the merits of which are addressed in the previous section of this opinion.
The Court previously addressed these arguments shortly after the parties completed
their briefing in Moore v. Westgate Resorts, Ltd., L.P. No. 3:18-CV-00410-DCLC,
2020 WL 6814666, at *10 (E.D. Tenn. Nov. 18, 2020). There, the parties made the same
arguments as here regarding the nature of this statute. The Court therein stated “[i]n the
ordinary course . . . a statute of limitations creates a time limit for suing in a civil case,
based on the date when the claim accrued” and that a “statute of repose, on the other hand,
puts an outer limit on the right to bring a civil action, which is measured not from the date
on which the claim accrues but instead from the date of the last culpable act or omission of
the defendant.” Id. at *11 (citing Stein v. Regions Morgan Keegan Select High Income
Fund, Inc., 821 F.3d 780, 786 (6th Cir. 2016)). For instance, a statute of limitations runs
from the period of plaintiff’s discovery of a wrongful act, whereas the statute of repose
runs from the event itself, here, the date of contract.
Accordingly, “a statute
of repose limits the time within which [an] action may be brought” and is “entirely
unrelated to the accrual of a cause of action.” Id. A statute may contain both a statute of
limitations and a statute of repose, and “courts have been known to characterize the same
provision as both a statute of limitations and a statute of repose.” Id.
Having discussed the general differences between the two types of statutes, this
Court determined that
[t]he time limitation provision in the Time Share Act tracks most closely with
a statute of repose. The four-year time limit begins on the date “of the
contract of purchase,” and has no relation to plaintiff's discovery of a
purported unlawful act. Tenn. Code Ann. § 66-32-119. The legislative
choice to name this provision “Statute of Limitations” does not change the
nature of the provision as a statute of repose, as Plaintiffs claim [Doc. 104,
pg. 17]. Thus, the limitations period in this cause of action, for claims
brought under the Act, began to run at the point of purchase for each Plaintiff.
Applying the same analysis, plaintiffs here purchased their Tennessee VOI on
July 2, 2011. The statute of repose therefore had run by July 2, 2015. The tolling
agreement did not come into effect until 2017 and does not save plaintiffs’ claim.
Accordingly, this action was brought after the statute of repose had run, fails to state a
claim as to the Tennessee VOI, and therefore is DISMISSED pursuant to Rule 12(b)(6)
and Section 66-32-119 of the Tennessee Time Share Act.
Defendants move for summary judgment on plaintiffs’ breach of contract claims
[Doc. 48 p. 4], arguing that plaintiffs do not, and cannot, point to a specific term of the
agreement that defendants breached. In the complaint, the only specific contractual
provision mentioned is that defendants “violated section 5 of the Purchase Agreement and
Promissory Note, entitled ‘Use and Occupancy’ which outlines Plaintiffs’ use, occupancy
and possessory rights in their Vacation Ownership Interests” [Doc. 38 ¶ 133]. However,
no such provision exists in the Tennessee VOI agreement. The complaint otherwise refers
to various general issues like plaintiffs’ inability to get reservations where and when they
wanted [Id. ¶ 135], defendants failing to provide, changing, or eliminating material benefits
and services [Id. ¶ 137], and plaintiffs being denied access to the properties [Id. ¶ 142].
Plaintiffs respond [Doc. 51 p. 8] stating that defendants violated paragraph one,
entitled “Ownership,”7 and paragraph four, entitled “Club Accommodations”8 of the
Tennessee VOI contract [Doc. 40-1]. More specifically, plaintiffs state that defendants
denied their requests for reservations or that the ability to reserve a unit was “severely
limited to the point of rarely if ever getting reservations they desired” which made plaintiffs
“Ownership. Owner is a member of the Association, and is entitled (a) to use Points to
reserve the use of accommodations in the Club (‘Club Accommodations’), (b) to vote for directors
of the Association, (c) to vote on major decisions of the association, and (d) through the Club and
the Association, to participate in the ownership of the assets of the association” [Doc. 40-1 §1].
“Club Accommodations. Owner shall have access to all existing and future Club
Accommodations and the properties within which those Club Accommodations are located
(‘Club Properties’), as well as all other accommodations owned or operated by or associated with
Club, wherever located. Provided however the location and specific nature of the Club
Accommodations shall be subject to change in accordance with the Club Instruments (as defined
below)” [Doc. 40-1 §4].
“unable to book where and when they wanted to,” even calling six to eight months in
advance of a desired reservation [Doc. 51 pp. 9–10.]. Plaintiffs allege that reservation
availability was limited because defendants only set aside a portion of the units for
timeshare owners, thereby “den[ying] access to the properties and benefits to which they
are entitled under the terms of the contract” [Id. p. 10]. Plaintiffs allege defendants
restricted the number of available units but do not cite a term that defendants have
breached; no provision guarantees or requires that a certain number or proportion of a
resort’s total rooms be made available to owners.
In support of plaintiffs’ arguments regarding general denial of reservations
breaching the Ownership provision, plaintiffs attach an excerpt of the deposition of
plaintiff Edna Allen [Doc. 51-4]. The deposition states that “what they didn’t tell us was
that we could no longer stay at Myrtle Beach. We lost the privilege of going there”
[Doc. 51-4 p. 2]. And when asked if they were able to get more reservations, she said “not
always . . . they would tell us nothing was available. And this would be months in advance”
later clarifying she would call between six and eight months ahead [Id. pp. 3–4]. The
deposition does not establish that plaintiffs were denied reservations, rather simply that
reservations were not booked because they were not available.
Plaintiffs have not established that the ability to book a reservation when and where
they wanted was guaranteed by any term of their purchase agreement. The contract states
that plaintiffs are “entitled  to use Points to reserve the use of accommodations in the
Club . . . on a space available basis” [Doc. 41-1 ¶¶ 1, 10]. In a statement of understanding,
plaintiffs initialed a paragraph that states “I understand that I may request reservations at
all CLUB WYNDHAM Plus resorts up to ten (10) months9 in advance and that all
reservations are confirmed on a space available basis” [Doc. 48-1 p. 10].
Plaintiff Allen, in her deposition, said plaintiffs were trying to use their points in
July and August during the summer and that they “could always book. Not necessarily
where our first choice was” [Doc. 48-7 p. 6]. Plaintiff Allen-Hughes testified during her
deposition about her attempts to make reservations. The “only example” she could provide
of not being able to make a reservation was during a popular golf tournament in Nashville
[Doc. 48-8 pp. 8–10]. She admitted that plaintiffs were not guaranteed to be able to reserve
at a particular time and acknowledged that she did not know whether she could have made
reservations at other locations, since she only attempted to reserve in Nashville [Id.].
After the purchase in September 2012, plaintiffs were able to book in Myrtle Beach,
at their preferred property in the presidential suite at their preferred time of year [Id. at
p. 22–23].10 Otherwise, plaintiff Allen-Hughes stated that she traveled using her timeshare
for a couple days “here or there” [Id. p. 23]. After the Virginia purchase, plaintiff AllenHughes rented out her timeshare interest “a whole handful of weekends” and made
approximately $4,500 during late summer of 2015 [Id. pp. 13–16]. Plaintiffs fail to
Plaintiffs argue they were not able to make reservations by calling six to eight months in
advance. That the reservations open up ten (10) months in advance could indicate that the
reservations may have been available prior to their inquiry and may have been already confirmed
and taken by other Wyndham owners.
As to plaintiffs’ assertion that they were not told they could not stay there any
longer, the contract explicitly states that oral representations are not a part of the contract
[Doc. 48-1 ¶ 17].
demonstrate how access to the properties was denied to them, as they used their timeshare
interest to book vacations for themselves and to rent out their interest at their preferred
properties, during their preferred time of year. They admitted that they were not guaranteed
any particular time or location and the reservations were confirmed on a space available
basis. They used such space when available and have failed to support their claim that
defendants breached the Ownership and Club Accommodations clauses of the contract.
Plaintiffs state defendants breached their contract by alerting plaintiffs that their
accounts would be frozen and violated the covenant of good faith and fair dealing by telling
plaintiffs that they could not use their timeshare [Doc. 51 pp. 9–10]. In response to
interrogatories from defendants, plaintiffs state that defendants further breached the
covenant because “benefits indicated in the [Public Offering Statement] have been
curtailed or eliminated” leading plaintiffs to not receive the “full benefit of what they
bargained for. Including the Pathway program that was discontinued. The relationship
between the number of points necessary and the number of points required for reservations
is not disclosed and was subject to misrepresentation and breach” [Doc. 48-8 p. 39].
To the extent that plaintiffs base their claim on the implied duty of good faith and
fair dealing, this argument fails. This duty is not a clause in a contract and “does not . . .
create new contractual rights or obligations, nor can it be used to circumvent or alter the
specific terms of the parties’ agreement.” Lamar Advertising v. By-Pass Partners,
313 S.W.3d 779, 791 (Tenn. Ct. App. 2009).
To the extent that plaintiffs argue benefits were eliminated, they do not identify what
benefits they lost that were included in the Tennessee VOI documentation. The Pathways
program, though eliminated, was only included in their Virginia VOI and defendants
reserved the right to terminate the program at any time [Doc. 48-3 p. 29].
Plaintiffs’ argument about the disclosure of the points necessary to make a
reservation also fails. Plaintiffs do not identify how this would breach the contract.
Nonetheless, such information was available to plaintiffs through the Membership
Directory. The directory includes instructions on how to read the points charges and the
specific charts for the properties [Doc. 48-6 pp. 11–19].
Defendant makes various additional arguments regarding the general grievances
plaintiffs lodge against defendants in the complaint.11 The Court does not find it necessary
to address the merits of these arguments, as they do not relate to any particular provision
in the contract after the Court’s review of the document. After defendants met their burden,
plaintiffs did not point to evidence in the record to allow a jury to find in its favor, and
plaintiffs may not proceed to trial merely on the basis of the pleadings. Universal Match
Corp., 778 F. Supp. at 1423.
In sum, plaintiffs state that “the entire idea was to purchase timeshare [sic] so that
reservations could be made for vacations. When the Defendants unreasonable [sic] restrict
Defendants state that plaintiffs generally assert that they were unable to book vacations
when and where they preferred, defendants failed to provide incidental services to the timeshare
ownership, defendants’ personnel were unavailable to assist with booking reservations, defendants
eliminated benefits provided in the Public Offering Statement, defendants discontinued the
Pathways Program, and defendants did not disclose the number of points needed to book
reservations [Doc. 49 pp. 15–20].
the reservations, they have breached the contracts” [Doc. 51 p. 10]. However, the parties
are not bound by ideas. They are bound by the terms of the contract, and plaintiffs have
not identified how defendants breached said contract. The Court concludes that no genuine
issue of material fact exists regarding plaintiffs’ breach of contract claim, Count III, as it
relates to the Tennessee VOI. Defendant’s motion for summary judgment is on this claim
is therefore GRANTED in part and that claim will be DISMISSED. To the extent the
arguments presented in the motion for summary judgment are duplicative of the issues or
claims handled at the dismissal stage, the motion is DENIED as moot in part.
For the reasons discussed above, defendants’ motion to dismiss [Doc. 40] will
Additionally, defendants’ motion for summary judgment will be
GRANTED in part and DENIED as moot in part. The Clerk will be DIRECTED to
TRANSFER the remainder of this action to the Middle District of Florida and to CLOSE
An appropriate order will enter.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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