Malik v. Texas Capital Bank, N.A. et al
Filing
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OPINION AND ORDER granting 16 Motion to Dismiss for Failure to State a Claim. All pending motions are denied as moot. This case is CLOSED. Signed by Judge Kenneth A. Marra on 5/24/2012. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-81090-CIV-MARRA/HOPKINS
HASHIM MALIK,
Plaintiff,
vs.
CHRIS HOOD, CURRY AUTO LEASING,
INC., and TEXAS CAPITAL BANK, N.A.,,
Defendants,
_____________________________________/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Texas Capital Bank’s (“TCB”) Motion
to Dismiss (DE 16). The motion is now fully briefed and is ripe for review. The Court has
carefully considered the motion and is otherwise fully advised in the premises.
I. Background1
This matter arises out of two separate lease agreements reached between Plaintiff Hashim
Malik and Defendant Curry Auto Leasing, Inc. (“Curry”). The first lease was for a BMW and
was entered into on July 10, 2006 (“BMW Lease”). The second lease was for a Mercedes Benz
and entered was into on July 27, 2007 (“Mercedes Lease”). Complaint at ¶¶ 8, 14. As alleged in
the Complaint, Curry subsequently assigned the BMW Lease to a non-party to this action, id. at ¶
18, and the Mercedes Lease to TCB. Id. at ¶ 12.2 Despite the assignment, Curry continued to
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The facts are taken from Plaintiff’s Complaint and are assumed true for the purposes of
Defendant’s Motion to Dismiss.
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The Court notes that although neither party has provided any evidence of an assignment
by Curry to TCB, neither party challenges the existence or validity of that assignment.
Accordingly, for purposes of this motion only, the Court presumes the assignment is valid.
function as the servicer or processor on both lease agreements. Id. at ¶¶ 12, 18. The Amended
Complaint asserts that Malik never made any payments to TCB, instead making all payments to
Curry. Id.
On March 23, 2010, Malik wired $100,000 to TCB. Id. at ¶ 19. Malik instructed CoDefendant Chris Hood and Curry to use a portion of that transfer to pay off both the Mercedes
and BMW leases. Id. at ¶ 20. Despite the request, Curry and Hood failed to apply any portion of
the $100,000 to the purchase of either vehicle, instead using the money for their own use and
benefit. Id. at ¶ 21. After failing to receive certain payments as required by the Mercedes Lease,
TCB repossessed the Mercedes in Florida and Malik was forced to pay over $17,000 to regain
possession of the vehicle. Id. at ¶ 22.
On August 19, 2011, Malik filed a complaint in Florida state court against all three
defendants. DE 1-2. On September 27, 2011, TCB removed the action to this Court. On
October 21, 2011, Malik filed an Amended Complaint alleging Civil Theft (Count I), Construct
Fraud (Count II), and Conversion (Count III) against Defendants Hood and Curry, as well as
separate claims Conversion (Count IV) and Wrongful Repossession (Count V) against Defendant
TCB. DE 14. On October 18, 2011, the Clerk of this Court entered an Order of Default against
Defendants Curry and Hood, DE 12. On December 14, 2011, the Court entered a Default
Judgment against those defendants. DE 28.
Defendant TCB now seeks to dismiss the remaining two claims pursuant to Federal Rules
of Civil Procedure 12(b)(3) and 12(b)(6).
II. Legal Standard for 12(b)(3) Motion
“Rule 12(b)(3) is the proper avenue for a party’s request for dismissal based on a
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forum-selection clause.” Slater v. Energy Services Group Intern., Inc., 634 F.3d 1326, 1333 (11th
Cir. 2011). “In considering a motion under Rule 12(b)(3), a court must accept the facts in a
plaintiff’s complaint as true.” Walker v. Hallmark Bank & Trust, Ltd., 707 F.Supp. 2d 1322,
1325 (S.D. Fla. 2010) (citing Wai v. Rainbow Holdings, 315 F.Supp. 2d 1261, 1268 (S.D.
Fla.2004). A court may also “consider matters outside the pleadings if presented in proper form
by the parties.” Id. (quoting MGC Commc’ns, Inc. v. BellSouth Telecomms., Inc., 146 F.Supp.
2d 1344, 1349 (S.D. Fla.2001). “Where conflicts exist between allegations in the complaint and
evidence outside the pleadings, the court ‘must draw all reasonable inferences and resolve all
factual conflicts in favor of the plaintiff.’ ” Id. (quoting Wai, 315 F.Supp.2d at 1268).
III. Discussion
That Mercedes Lease states:
This agreement and the rights of the parties hereunder shall be governed by the
laws of the State of Texas. This agreement has been made in and is performable
in Dallas County, Texas. Any action to enforce or construe this agreement or any
document executed in connection herewith shall be commenced in a court in
Dallas County, Texas and the parties hereunder shall be bound by the jurisdiction
of such court.
DE 14-1 at ¶ k.
In Response to Defendant TCB’s Motion to Dismiss, Plaintiff does not challenge the
validity of the forum selection clause in the Mercedes Lease.3 Instead, without citing any
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Forum selection clauses are presumptively valid and enforceable unless the plaintiff can
make a strong showing that enforcement would be unfair or unreasonable under the
circumstances. Rucker v. Oasis Legal Rinance, L.L.C., 632 F.3d 1231, 1236 (11th Cir. 2011). A
forum selection clause is unenforceable when: 1) its formation was induced by fraud or
overreaching; 2) the plaintiff would be deprived of his 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. Plaintiff has not asserted that any of these grounds of
unenforceability are present.
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authority, Plaintiff asserts that his claims for conversion and wrongful repossession are outside
the scope of the Mercedes Lease. The Court rejects Plaintiff’s contention.
The forum selection clause provides that “any action to enforce or construe this
agreement” shall be commenced in Dallas County, Texas. (emphasis added) Count IV of
Plaintiff’s amended complaint alleges TCB “intentionally and maliciously repossessed the
Mercedes.” DE 14, ¶ 40. Count V of the amended complaint alleges that TCB “wrongfully,
intentionally and maliciously repossessed the Mercedes.” In order to determine whether TCB
wrongfully repossessed the Mercedes, the court must “construe” the terms and provisions of the
lease agreement. Without knowing the respective rights and obligations of the parties under the
lease, a court cannot resolve Plaintiff’s claims. Thus, this is an action “to enforce or construe this
agreement.” See Pods. Inc. v. Paysource, Inc., Case No. 8:05-CV-1764-T-27EAJ at *2 (M.D.
Fla. 2006).
Accordingly, Defendant’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(3) is GRANTED.
In light of the Court’s dismissal pursuant to Rule 12(b)(3), it will not address those
portions of Defendant’s Motion that seek dismissal pursuant to Rule 12(b)(6).
IV. Conclusion
For the aforementioned reasons, it is hereby ORDERED AND ADJUDGED that
Defendant Texas Capital Bank’s Motion to Dismiss (DE 16), is GRANTED. This case as to
Texas Capital Bank. N.A. is DISMISSED WITHOUT PREJUDICE. The Clerk of this Court
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is ORDERED to CLOSE this case. All pending motions are DENIED AS MOOT.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 24th day of May, 2012.
_______________________________________
KENNETH A. MARRA
United States District Judge
Copies to:
Counsel of record
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