Facemire v. Huntington Bancshares Inc.
Filing
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COMPLAINT: The defendant's motion to dismiss the complaint (ECF No. 6 ) is GRANTED. Accordingly, it is ORDERED that this case be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 9/26/2018. (Copy to PS Plaintiff via CM, RRR.)(wrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ERIC FACEMIRE,
Plaintiff,
v.
Civil Action No. 1:18CV118
(STAMP)
HUNTINGTON BANCSHARES INC.,
a foreign corporation d/b/a
THE HUNTINGTON NATIONAL BANK.
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS COMPLAINT
I.
Background
The defendant, Huntington Bancshares Inc., removed this civil
action to this Court from the Circuit Court of Harrison County,
West
Virginia.
ECF
No.
1.
The
plaintiff,
Eric
Facemire
(“Facemire”), commenced the civil action in state court seeking
relief for defendant’s alleged 74 separate violations of the West
Virginia Consumer Credit Protection Act.
The
plaintiff
alleges
that
the
ECF No. 1-1 at 10-11.
defendant
was
on
notice
of
plaintiff’s Chapter 7 bankruptcy proceedings and that despite an
automatic stay and later discharge, that defendant continued to
collect on the debt.
Id. at 10.
The plaintiff seeks compensatory
damages, statutory penalties, prejudgment interest, and an award of
attorney’s fees and court costs.
Id. at 11.
The defendant filed a motion to dismiss the plaintiff’s
complaint for failure to state a claim.
ECF No. 6.
The defendant
contends that the entire complaint should be dismissed because “the
Business Credit Line Agreement which created the debt is governed
by Ohio, not West Virginia, law.”
Id. at 1.
The defendant argues
that since this action is based upon diversity, the Court must
apply the conflict of laws analysis of the forum state, which is
West Virginia.
under
West
ECF No. 7 at 4.
Virginia
law,
“presumptive[ly] valid[]”.
The defendant also argues that
a
choice
of
law
provision
is
Id. (citing Manville Pers. Injury
Settlement Tr. v. Blankenship, 231 W. Va. 637, 644, 749 S.E.2d 329,
336 (2013)).
Therefore, the Credit Line Agreement’s choice of law
provision is entitled to presumptive validity, unless one of two
exceptions apply to overturn the presumptive validity of this
choice of law provision.
Id. at 5.
The defendant argues that
neither exception applies because: (1) the provision “bears a
substantial relationship to the chosen jurisdiction of Ohio because
Huntington is a federal bank based in Ohio” and because the
agreement requires “Huntington to send periodic statements, loan
funds, accept payments, and accept certain notifications from its
Ohio operations;” and (2) applying Ohio law would not offend the
public policy of West Virginia.
Id. at 5-6.
Thus, the defendant
asks that the complaint be dismissed in its entirety.
Id. at 6.
The plaintiff did not file a response to the defendant’s
motion.
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On August 6, 2018, this Court held a status and scheduling
conference.
Defendant
appeared
telephonically
Plaintiff Eric Facemire did not appear.
by
counsel.
During the conference,
this Court inquired as to whether counsel for the defendant had any
knowledge of the plaintiff receiving notice of the status and
scheduling conference.
Counsel for the defendant stated that he
has received a return receipt indicating “service accepted” of the
letter
regarding
the
above-mentioned
status
and
scheduling
conference which was sent by certified mail to the plaintiff.
ECF
No. 19.
This Court then stated that it felt that the best way to
proceed in this matter would be to defer entering a scheduling
order and issue a Roseboro notice to the pro se plaintiff Eric
Facemire.
Facemire was advised that a failure to respond to the
defendant’s motion to dismiss the complaint may result in the entry
of a judgment against him.
Pro se litigant Facemire was notified
that within 14 days of receipt of this order he may file a response
explaining why this case should not be dismissed.
Facemire was
further advised that he must serve the defendant with any response
that he may file.
For the following reasons, the motion to dismiss must be
granted.
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II.
Applicable Law
In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept all well-pled facts
contained in the complaint as true.
Nemet Chevrolet, Ltd v.
Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009).
However, “legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement fail to
constitute well-pled facts for Rule 12(b)(6) purposes.”
Id.
(citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
This
Court
also
declines
to
consider
“unwarranted
unreasonable conclusions, or arguments.”
inferences,
Wahi v. Charleston Area
Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).
The purpose of a motion under Rule 12(b)(6) is to test the
formal sufficiency of the statement of the claim for relief; it is
not a procedure for resolving a contest about the facts or the
merits of the case.
5B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1356 (3d ed. 1998).
The Rule
12(b)(6) motion also must be distinguished from a motion for
summary judgment under Federal Rule of Civil Procedure 56, which
goes to the merits of the claim and is designed to test whether
there is a genuine issue of material fact.
Id.
For purposes of
the motion to dismiss, the complaint is construed in the light most
favorable to the party making the claim and essentially the court’s
inquiry
is
directed
to
whether
4
the
allegations
constitute
a
statement of a claim under Federal Rule of Civil Procedure 8(a).
Id. § 1357.
A complaint should be dismissed “if it does not allege ‘enough
facts to state a claim to relief that is plausible on is face.’”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Facial
plausibility is established once the factual content of a complaint
‘allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Nemet Chevrolet,
591 F.3d at 256 (quoting Iqbal, 129 S. Ct. at 1949).
Detailed
factual allegations are not required, but the facts alleged must be
sufficient “to raise a right to relief above the speculative
level.”
Twombly, 550 U.S. at 555.
In this case, Eric Facemire, as the non-moving party, failed
to respond to the defendant’s motion to dismiss after sufficient
time to respond.
However, Facemire’s failure to file a response
does not relieve the defendant from the burden imposed upon it as
the moving party.
See Custer v. Pan Am. Life Ins. Co., 12 F.3d 410
(4th Cir. 1993). The United States Court of Appeals for the Fourth
Circuit in Custer held that while “the failure to respond to a
summary
judgment
motion
may
leave
uncontroverted
those
facts
established by the motion, the moving party must still show the
uncontroverted facts entitle the party to ‘a judgment as a matter
of law.’”
Id. (quoting Fed. R. Civ. P. 56(c)).
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III.
Discussion
Attached to the defendant’s motion to dismiss is a copy of the
Credit Line Agreement at issue.
ECF No. 6-1.
containing Facemire’s signature, states:
to Ohio and federal law.
The agreement,
“Your account is subject
If the law makes part of this agreement
void, the other terms will still be enforceable.”
Id. at 3-4.
This Court finds that the plaintiff fails to explain why this
choice of law provision should be set aside.
It is clear to this
Court that, under Erie, the Court must apply the conflict of laws
of West Virginia.
(1938).
the
304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188
“[C]hoice of law clauses are enforceable, except when [1]
contract
bears
no
substantial
relationship
with
the
jurisdiction whose laws the parties have chosen to govern the
agreement, or [2] when the application of that law would offend the
public policy of [the] state.”
Nutter v. New Rents, Inc., No. 90-
2493, 1991 U.S. App. LEXIS 22952, at *16 (4th Cir. Oct. 1, 1991)
(citing General Electric v. Keyser, 166 W. Va. 456 (1981)).
Furthermore, the Court agrees with the defendant that the two
exceptions do not apply here.
As the defendant points out,
Huntington is a federal bank based in Ohio and it is required to
send periodic statements, loan funds, accept payments, and accept
notifications
from
its
Ohio
operations.
ECF
No.
7
at
5.
Additionally, the defendant correctly indicates that Ohio also has
a law that protects consumers, one which the plaintiff could
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assert. Id.
Thus, the choice of law provision dictating that Ohio
law governs the debt is valid and the two exceptions are not
applicable here.
Accordingly, this Court must grant the defendant’s motion to
dismiss.
IV.
Conclusion
For the reasons set forth above, the defendant’s motion to
dismiss the complaint (ECF No. 6) is GRANTED.
Accordingly, it is
ORDERED that this case be DISMISSED and STRICKEN from the active
docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to plaintiff and to counsel of record herein.
Pursuant to Federal Rule of Civil Procedure 58, the Clerk is
DIRECTED to enter judgment on this matter.
DATED:
September 26, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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