Smith v. Oasis Legal Finance, LLC

Filing 17

ORDER: Defendant Oasis Legal Finance, LLC's Motion to Dismiss Amended Complaint and to Strike Class Allegations (Doc. # 14 ) is GRANTED to the extent the case is DISMISSED for forum non conveniens. The Clerk is directed to CLOSE this case. Signed by Judge Virginia M. Hernandez Covington on 10/31/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HEATHER SMITH, individually
and on behalf of all those
similarly situated,
Plaintiff,
v.

Case No. 8:17-cv-2163-T-33JSS

OASIS LEGAL FINANCE, LLC
d/b/a OASIS FINANCE,
Defendant.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant

Oasis

Legal

Finance,

LLC’s

Motion

to

Dismiss

Amended Complaint and to Strike Class Allegations (Doc. #
14), filed on October 10, 2017. Plaintiff Heather Smith
responded on October 23, 2017. (Doc. # 16). For the reasons
that follow, the Motion is granted to the extent the case is
dismissed pursuant to the doctrine of forum non conveniens.
I.

Background
Smith entered a litigation funding agreement, which she

characterizes as a loan, with Oasis Legal in May of 2016.
(Doc. # 10 at 3; Doc. # 10-1 at 2). The agreement specified
Oasis Legal would give Smith $1,140 to fund a lawsuit in which
Smith was represented. (Doc. # 10 at 3). In return, Smith

1

agreed to pay a portion of the proceeds from that pending
litigation — a provision Smith interprets as imposing an
unlawfully high interest rate between 33.44% and 71.42%.
(Id.). The agreement also included a forum selection clause
and choice of law provision, which state in relevant part:
This
Purchase
Agreement,
and
all
lawsuits,
disputes, claims, or proceedings arising out of or
relating to this Purchase Agreement or the
relationships that result from this Purchase
Agreement, shall be governed, construed and
enforced in accordance with the laws of the State
of Florida.
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.
(Doc. # 10-1 at 6).
Furthermore, the agreement specified: “THE PARTIES ALSO
WAIVE

ANY

RIGHT

TO

HAVE

HANDLED

AS

A

CLASS

ACTION

ANY

PROCEEDING ON ANY LAWSUIT, DISPUTE, CLAIM, OR CONTROVERSY
ARISING OUT OF THIS AGREEMENT . . . .” (Id.). Smith’s attorney
for

that

litigation

also

signed

an

“Attorney

Acknowledgement,” acknowledging that he received a copy of
the agreement and that there was no other source of funding

2

for the litigation to the attorney’s knowledge. (Doc. # 10-2
at 6).
On August 21, 2017, Smith initiated this action in the
Thirteenth Judicial Circuit, in and for Hillsborough County,
Florida. (Doc. # 2). Oasis Legal removed the case to this
Court on September 19, 2017. (Doc. # 1). The next day, Oasis
Legal filed a Motion to Dismiss and Strike Class Allegations,
arguing the case should be dismissed for improper venue and
the

class

allegations

should

be

stricken

based

on

the

agreement’s forum selection and class action clauses. (Doc.
# 5).
Smith filed her Amended Complaint on October 3, 2017,
again asserting claims for unjust enrichment and violation of
Florida’s Interest, Usury, and Lending Practices Act and
Florida’s Deceptive and Unfair Trade Practices Act, as well
as for declaratory relief under Florida’s Consumer Finance
Act. (Doc. # 10). She seeks this relief on behalf of herself
and all others who entered similar agreements with Oasis Legal
in Florida beginning on August 21, 2013. (Id. at 5-6). Oasis
Legal then filed its Motion to Dismiss Amended Complaint and
to Strike Class Allegations on October 10, 2017, (Doc. # 14),
to which Smith has responded. (Doc. # 16). The Motion is ripe
for review.

3

II.

Analysis
1.

Venue is proper in the Middle District of Florida,
but dismissal under the doctrine of forum non
conveniens is still available

First,

Oasis

Legal

argues

that

the

case

should

be

dismissed for improper forum pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Doc. # 14 at 6). Oasis Legal insists
that

“[p]ursuant

to

the

agreement’s

broad,

comprehensive

exclusive venue provision, any forum other than the Circuit
Court of Cook County is improper.” (Id.). Because Oasis Legal
refers to an improper forum rather than improper venue, it is
unclear whether Oasis Legal is arguing that venue does not
properly lie in the Middle District of Florida under the
federal statutory venue provisions. See Trafalgar Capital
Specialized Inv. Fund (In Liquidation) v. Hartman, 878 F.
Supp. 2d 1274, 1286 (S.D. Fla. 2012)(“A forum selection clause
does not, by itself, render venue in an alternative forum
improper, as venue is improper only if the statutory venue
requirements . . . have not been satisfied.” (quoting Eres
N.V. v. Citgo Asphalt Ref. Co., 605 F. Supp. 2d 473, 479
(S.D.N.Y. 2009)).
So far as that is Oasis Legal’s argument, Smith contends
that venue is proper in the Middle District of Florida because
Oasis Legal removed the case to this Court. (Doc. # 16 at 6).

4

Indeed, 28 U.S.C. § 1441(a) prescribes that a state action is
properly removed “to the district court of the United States
for the district and division embracing the place where such
action is pending.” 28 U.S.C. § 1441(a). “[Section] 1441(a),
by requiring removal to the district court for the district
in which the state action is pending, properly fixes the
federal venue in that district. Thus, once a case is properly
removed to federal court, a defendant cannot move to dismiss
on § 1391 venue grounds.” Hollis v. Fla. State Univ., 259
F.3d 1295, 1299 (11th Cir. 2001). Venue is proper in the
Middle District of Florida because Oasis Legal removed the
case here from the Thirteenth Judicial Circuit, in and for
Hillsborough County, Florida. Therefore, Oasis Legal’s Motion
is denied to the extent it requests the case be dismissed
under the theory that venue is improper in this Court.
That does not end the inquiry of whether the case should
remain in this Court. Oasis Legal alternatively argues that
the case should be dismissed under the doctrine of forum non
conveniens, as outlined in the Supreme Court case Atlantic
Marine Construction Company, Inc. v. United States District
Court for the Western District of Texas, 134 S. Ct. 568
(2013). (Doc. # 14 at 16-17). Smith correctly notes that Oasis
Legal failed to raise a § 1404(a) argument for transfer. (Doc.

5

# 16 at 6). For good reason. The forum selection clause in
the Agreement specifies that the action must be brought in
the Circuit Court of Cook County, Illinois — a state court.
Therefore, transfer under § 1404(a) is unavailable because
that section deals with transfer to other federal courts. See
Atl. Marine, 134 S. Ct. at 580 (“Section 1404(a) is merely a
codification of the doctrine of forum non conveniens for the
subset of cases in which the transferee forum is within the
federal court system. . . . For the remaining set of cases
calling for a nonfederal forum, § 1404(a) has no application,
but

the

residual

continuing

doctrine

application

in

of

forum

federal

non

conveniens

courts.’”

‘has

(citation

omitted)).
Therefore, Smith is incorrect that the only means of
challenging venue in a removed case is to move for transfer
pursuant

to

§

1404(a).

Smith

herself

acknowledges

the

existence of Pappas v. Kerzner International Bahamas Limited,
585 F. App’x 962 (11th Cir. 2014). There, the Eleventh Circuit
affirmed dismissal under the modified Atlantic Marine forum
non conveniens analysis because a forum selection clause
mandated the claims be litigated in the Bahamas. Id. at 967;
see also Vernon v. Stabach, No. 13-62378-CIV, 2014 WL 1806861,
at

*2

(S.D.

Fla.

May

7,

2014)(“Because

6

the

Ohio

forum-

selection clause in this case designates a state forum, and
not

a

federal

conveniens

is

one,
the

a

motion

to

appropriate

dismiss

for

enforcement

forum

non

mechanism.”).

Smith’s attempt to distinguish Pappas from this case is
unavailing. The fact that Pappas was initiated in federal
court, rather than removed, does not imply that a removed
case cannot be dismissed on forum non conveniens grounds. See
Blue Ocean Corals, LLC v. Phoenix Kiosk, Inc., No. 14-CIV61550,

2014

WL

4681006,

at

*9

(S.D.

Fla.

Sept.

19,

2014)(dismissing a case removed from Florida state court
under the Atlantic Marine forum non conveniens analysis where
a valid forum selection clause mandated litigation in Arizona
state court).
2.

Dismissal for forum non conveniens is proper

As mentioned, Oasis Legal alternatively argues that the
case

should

be

dismissed

under

the

modified

forum

non

conveniens analysis specified in Atlantic Marine. (Doc. # 14
at 16-17). Typically, “[t]o obtain dismissal for forum non
conveniens, ‘[t]he moving party 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,

7

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)).
Still, “the Supreme Court in Atlantic Marine explained
that

an

enforceable

forum-selection

clause

carries

near-

determinative weight in this analysis.” GDG Acquisitions,
LLC, 749 F.3d at 1028.
When 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. . . . As a consequence, a
district court may consider arguments about publicinterest factors only. Because those factors will
rarely defeat a transfer motion, the practical
result is that forum-selection clauses should
control except in unusual cases.
Atl. Marine, 134 S. Ct. at 582 (internal citations omitted
and emphasis added). “Thus, a district court now must consider
an

enforceable

forum-selection

clause

in

the

forum

non

conveniens analysis.” GDG Acquisitions, LLC, 749 F.3d at
1029.
a.
The

The forum selection clause is enforceable and
has not been waived

Atlantic

Marine

analysis

“presupposes

a

contractually valid forum selection clause.” Atl. Marine, 134
S. Ct. at 581 n.5. Therefore, the Court must determine whether
the

forum

selection

clause

is,

8

in

fact,

valid.

“Beyond

validity, in analyzing the application of a forum-selection
clause

a

court

must

determine

whether

the

claim

or

relationship at issue falls within the scope of the clause —
by looking to the language of the clause itself — and whether
the clause is mandatory or permissive.” Blue Ocean Corals,
LLC, 2014 WL 4681006, at *4.
Here,

the

forum

selection

clause

provides

that

the

parties consent “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.” (Doc. # 10-1 at 6). The forum selection clause is
mandatory because it specifies that jurisdiction in Cook
County is “exclusive.” See Glob. Satellite Commc’n Co. v.
Starmill U.K. Ltd., 378 F.3d 1269, 1272 (11th Cir. 2004)(“A
permissive clause authorizes jurisdiction in a designated
forum but does not prohibit litigation elsewhere. A mandatory
clause,

in

contrast,

‘dictates

an

exclusive

forum

for

litigation under the contract.’” (citation omitted)). Smith
does not argue that her claims exceed the scope of the
agreement’s

forum

selection

clause.

Because

the

Amended

Complaint argues the terms of the agreement are illegal, the
claims either “aris[e] out of or relat[e] to” the agreement.
(Doc. # 10-1 at 6); see Bahamas Sales Assoc., LLC v. Byers,

9

701 F.3d 1335, 1340 (11th Cir. 2012)(“To determine if a claim
falls within the scope of a clause, we look to the language
of the clause.”).
“Forum-selection clauses are presumptively valid and
enforceable unless the plaintiff makes a ‘strong showing’
that enforcement would be unfair or unreasonable under the
circumstances.” Krenkel v. Kerzner Int’l Hotels Ltd., 579
F.3d 1279, 1281 (11th Cir. 2009).
A forum-selection clause will be invalidated when:
(1) its formation was induced by fraud or
overreaching; (2) the plaintiff would be deprived
of its day in court because of inconvenience or
unfairness; (3) the chosen law would deprive the
plaintiff of a remedy; or (4) enforcement of the
clause would contravene public policy.
Id.
“In order for a forum selection clause to be invalidated
on the basis of the first factor, fraud or overreaching, a
plaintiff

must

specifically

allege

that

the

clause

was

included in the contract at issue because of fraud.” Rucker
v. Oasis Legal Fin., L.L.C., 632 F.3d 1231, 1236 (11th Cir.
2011). Although she emphasizes the agreement “is a form
agreement not subject to negotiation,” Smith does not allege
in her Amended Complaint or response that the forum selection
clause was entered through fraud. (Doc. # 16 at 13). So, the
forum selection clause cannot be invalidated on the grounds

10

of fraud or overreaching. See Rucker, 632 F.3d at 1236 (“The
plaintiffs have never made this allegation here. For that
reason, the first factor does not support non-enforcement of
the forum selection clause.”).
Nevertheless, Smith argues that dismissal for forum non
conveniens is unwarranted because the forum selection clause
is invalid and unenforceable for various other reasons. (Doc.
# 16 at 7-14). First, Smith argues that the forum selection
clause

is

unenforceable

because

the

entire

agreement

containing that clause is unlawful. (Id. at 9). The Court is
not persuaded. As the Eleventh Circuit has explained, “[a]
forum selection clause is viewed as a separate contract that
is severable from the agreement in which it is contained.”
Rucker, 632 F.3d at 1238.
Smith argues Rucker is distinguishable in part because,
unlike Rucker, this case was removed to federal court. (Doc.
# 16 at 9). That this case was removed makes no difference to
whether the forum selection clause is severable from the rest
of the agreement. Smith also argues Rucker is distinguishable
because the plaintiff there sought a declaration regarding
whether the agreement was an illegal gambling contract. (Doc.
# 16 at 9). In contrast, Smith argues her agreement violates
a Florida statute outlawing excessive interest rates and

11

invalidating loans that charge such rates. But the fact that
Rucker

challenged

the

legality

of

an

agreement

under

a

different legal theory does not impact whether the forum
selection clause is severable from the rest of the agreement
here.

Rucker

applies

and

the

forum

selection

clause

is

severable from the rest of the agreement.
Even if the clause is severable, Smith urges that “public
policy factors weigh in favor of keeping the case here.” (Doc.
# 16 at 12). Although Smith asserts that “enforcement of the
venue selection clause here . . . clearly violates the public
policy of the State of Florida,” she cites no authority
holding

that

enforcement

of

a

severable

forum

selection

clause that was not entered through fraud violates Florida
public policy. (Id. at 13). Instead, Smith points out that
only eight cases have been brought against Oasis Legal in the
Circuit Court of Cook County, Illinois since 2006. (Id. at
14; Doc. # 16-1). In Smith’s eyes, this low number of cases
proves that the Cook County court “was clearly chosen to make
it difficult and expensive in small dollar individual cases
for Floridians to bring an action against Oasis.” (Doc. # 16
at 14). Thus, she argues litigating in Cook County frustrates
the purpose of the Florida Consumer Finance Act — a consumer
protection statute. (Id. at 13-14). Although Smith “does not

12

know how congested the Cook County court’s docket may be,”
she contends Florida has an interest in having this case
adjudicated locally. (Id. at 14).
Smith has not provided any information on the number of
Floridians who have attempted to sue Oasis Legal in Florida
courts, but who were foiled by the forum selection clause.
The Court has no information on how many Floridians wish to
pursue claims against Oasis Legal. Therefore, the Court has
no context to determine whether the number of cases in Cook
County court actually indicates a significant frustration of
Floridians’ ability to sue. Regardless, it may be true that
few Floridians would choose to pursue claims against Oasis
Legal in Cook County court. But this does suggest that the
forum

selection

clause

those

Floridians

signed

is

so

unreasonable as to violate public policy.
The Court also notes that Florida law would be applied
in the Cook County court, so Smith would not be deprived of
the

remedy

she

seeks

—

an

adjudication

of

whether

the

agreement violates Florida law. See Rucker, 632 F.3d at 1237
(rejecting
“plaintiff’s

plaintiff’s
argument

public
again

policy

ignores

argument

the

fact

because
that

the

Illinois court hearing this case will apply Alabama law, and
must therefore give proper deference to the Alabama precedent

13

plaintiffs

provide”).

enforcement

of

the

As

Florida

forum

law

selection

will

be

clause

applied,
will

not

significantly undermine the effectiveness of the consumer
protection statutes under which Smith brings her claims. Cf.
Mgmt. Computer Controls, Inc. v. Charles Perry Const., Inc.,
743 So. 2d 627, 633 (Fla. 1st DCA 1999)(declining to enforce
forum selection clause for FDUPTA claim where the forum
selection clause required the case be litigated in Tennessee
and

the

agreement

be

interpreted

and

construed

under

Tennessee law).
The Court does not share Smith’s apparent concern that
an Illinois judge has no interest in correctly deciding a
matter of Florida law. And, while Florida may have an interest
in having this case adjudicated locally, there is nothing to
suggest

that

this

interest

outweighs

the

parties’

contractually agreed forum selection clause. Weighing the
factors, the Court finds that Smith has not made the requisite
“strong showing” that the forum selection clause should be
invalidated as unfair or unreasonable. See Krenkel, 579 F.3d
at 1281 (“Forum-selection clauses are presumptively valid and
enforceable unless the plaintiff makes a ‘strong showing’
that enforcement would be unfair or unreasonable under the
circumstances.”). Thus, the forum selection clause is valid.

14

Finally, even if the forum selection clause is valid,
Smith argues Oasis Legal waived its right to enforce the
clause by including requests that the Court strike the class
allegations in its original motion to dismiss for improper
venue, and again in its renewed Motion. (Doc. # 16 at 7).
“The test for waiver of a forum selection clause is whether
the party seeking its enforcement has acted inconsistently
with the clause’s right and whether the other party has been
prejudiced as a result.” Utilities Mktg. Grp., LLC v. Warrick,
No. 8:15-cv-1966-T-26TBM, 2016 WL 3447528, at *2 (M.D. Fla.
June 23, 2016).
The Court is not persuaded that Oasis Legal has waived
enforcement of the forum selection clause. Oasis Legal moved
for dismissal for improper venue or, alternatively, for forum
non conveniens the day after the case was removed to this
Court. (Doc. # 5). Once Smith filed her Amended Complaint,
Oasis Legal renewed its request that the case be dismissed
based on the forum selection clause by filing the instant
Motion. (Doc. # 14). The fact that Oasis Legal also requests
that Smith’s class action allegations be stricken does not
show that Oasis Legal acted inconsistently with a desire to
enforce the forum selection clause. Oasis Legal has not waived
its right to enforce the forum selection clause.

15

b.

Public-interest
factors
do
not
warrant
maintaining the case in this District

Having determined that the causes of action in this
lawsuit are governed by a valid, mandatory, forum selection
clause, the Court must next consider whether to enforce the
clause under the doctrine of forum non conveniens. First, the
Court notes that the Circuit Court of Cook County, Illinois
is an adequate forum and Smith does not deny that her case
could be brought there. See Kolawole v. Sellers, 863 F.3d
1361,

1369

(11th

Cir.

2017)(“A

forum

is

adequate

if

it

provides for litigation of the subject matter of the dispute
and

potentially

offers

redress.”

(citation

and

internal

quotation marks omitted)).
Additionally, the Court need only address the publicinterest factors, because the private-interest factors all
weigh in favor of dismissal. See PNC Bank, N.A. v. Akshar
Petroleum, Inc., No. 3:13-cv-436-J-34PDB, 2014 WL 1230689, at
*6 (M.D. Fla. Mar. 25, 2014)(“In conducting this analysis,
the Court may consider only public-interest factors.” (citing
Atl. Marine, 134 S. Ct. at 582)); GDG Acquisitions, LLC, 749
F.3d at 1029 (“A binding forum-selection clause requires the
court to find that the forum non conveniens private factors
entirely favor the selected forum.”). These public-interest

16

factors “include ‘the administrative difficulties flowing
from court congestion; the local interest in having localized
controversies decided at home; [and] the interest in having
the trial of a diversity case in a forum that is at home with
the law.’” Atl. Marine, 134 S. Ct. at 581 n.6 (citation
omitted).

Nevertheless,

the

Court

cautioned

that

public-

interest “factors will rarely defeat” a motion to enforce a
valid forum selection clause. Id. at 582. The party opposing
dismissal or transfer “bear[s] the burden of showing that
public-interest factors overwhelmingly disfavor” dismissal or
transfer. Id. at 583 (“As the party acting in violation of
the forum-selection clause, [plaintiff] must bear the burden
of

showing

that

public-interest

factors

overwhelmingly

disfavor a transfer.”).
The Court has already addressed Smith’s public-policy
arguments in determining that the forum selection clause is
valid. The Court will revisit these arguments to the extent
they relate to the Atlantic Marine public-interest factors.
Smith is unaware of whether there is congestion in the Circuit
Court of Cook County, Illinois, so that factor does not weigh
against dismissal. (Doc. # 16 at 14). True, Smith trumpets
the importance of the localized dispute being decided in a
Florida forum that is at home with the law. (Id.). Still,

17

these public-interest factors do not overwhelmingly disfavor
dismissal, especially in light of the choice of law provision
requiring application of Florida law.
The Court is cognizant of the Supreme Court’s warning
that

dismissal

or

transfer

for

forum

non

conveniens

is

required unless “extraordinary circumstances unrelated to the
convenience of the parties” outweigh the parties’ contractual
choice of forum. Atl. Marine, 134 S. Ct. at 581. Smith has
not shown that any such extraordinary circumstances exist.
Therefore, this action is dismissed so that it may be refiled
in the Circuit Court of Cook County, Illinois.
III. Conclusion
The

forum

extraordinary

selection
circumstances

clause
weigh

is

enforceable

against

and

enforcing

no
the

clause. The Court dismisses this case under the doctrine of
forum non conveniens. Because the Court has determined that
the case should be litigated in a different forum, the Court
declines to determine whether the class action allegations in
the Amended Complaint should be stricken. Oasis Legal may
raise that issue in the Circuit Court of Cook County, Illinois
if Smith refiles her action.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:

18

(1)

Defendant Oasis Legal Finance, LLC’s Motion to Dismiss
Amended Complaint and to Strike Class Allegations (Doc.
# 14) is GRANTED to the extent the case is DISMISSED for
forum non conveniens.

(2)

The Clerk is directed to CLOSE this case.
DONE and ORDERED in Chambers, in Tampa, Florida, this

31st day of October, 2017.

19