Liberty Tax Franchisee’s Claim Against Bank Derailed by Pleading Defect

In a recent Liberty Tax franchise case the United States District Court for the Western District of Kentucky, Louisville Division found that the franchisee’s tortious interference claim against Republic Bank & Trust Company (“Republic”) should be dismissed based on the franchisee’s lawyer’s failure to properly plead indemnity or contribution required to procedurally assert the claim in federal court; based on this ruling the court did not further consider the other logical problems with the franchisee’s alleged wrongdoing.

JTH Tax, Inc. v. Freedom Tax, Inc., Civil Action No. 3:19-cv-00085-RGJ, 2019 U.S. Dist. LEXIS 218210 (W.D. Ky. Dec. 19, 2019)

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Counsel:

For JTH Tax, Inc., doing business as Liberty Tax Service, Siempretax+, L.L.C., Plaintiffs: Denise M. Motta, LEAD ATTORNEY, Gordon Rees Scully Mansukhani LLP – Louisville, Louisville, KY; Julia K. Whitelock, LEAD ATTORNEY, Gordon Rees Scully Mansukhani LLP – Alexandria, Alexandria, VA; Patrick K. Burns, LEAD ATTORNEY, Gordon Rees Scully Mansukhani LLP – DC, Washington, DC; Peter G. Siachos, LEAD ATTORNEY, Gordon Rees Scully Mansukhani LLP – Florham Park, Florham Park, NJ.

For the Franchisees Adisa Selimovic, Freedom Tax., Inc., ThirdParty Plaintiffs: Brett M. Buterick, LEAD ATTORNEY, Hill Wallack LLP, Princeton, NJ; Evan M. Goldman, LEAD ATTORNEY, A. Y. Strauss LLC, Roseland, NJ.

JTH Tax, Inc. v. Freedom Tax, Inc.

United States District Court for the Western District of Kentucky, Louisville Division

December 19, 2019, Filed

Civil Action No. 3:19-cv-00085-RGJ

Excerpts from the Decision:

MEMORANDUM OPINION AND ORDER

Plaintiffs JTH Tax, Inc., d/b/a Liberty Tax Service (“JTH”), and Siempretax+, LLC (“Siempre Tax”) (collectively, “Liberty”) filed a complaint against Defendants Freedom Tax, Inc. (“Freedom”) and Adisa Selimovic (“Selimovic”) seeking relief for alleged violations of the Lanham Act, [*2]  15 U.S.C. §§ 1114, 1125, et seq., and the Defend Trade Secrets Act, 18 U.S.C. § 1836, et seq. [DE 1; DE 33]. Freedom and Selimovic (collectively, “Third-Party Plaintiffs”) filed an Answer and Affirmative Defenses [DE 42], and brought counterclaims against Liberty and a third-party complaint against Republic Bank & Trust Company (“Republic”). In the third-party complaint, Third-Party Plaintiffs allege tortious interference in prospective economic advantage and breach of contract. Id. at 914-915. Republic now moves to dismiss the third-party complaint. [DE 55]. Briefing is complete, and the motion is ripe. [DE 59; DE 62]. For the reasons below, the Court GRANTS Republic’s Motion.

1. BACKGROUND

Liberty is a franchisor of Liberty Tax Service®. [DE 33 at ¶ 19]. Liberty owns various Liberty Tax Service® trademarks, service marks, logos, and derivations (“the Marks”), which are registered with the United States Patent and Trademark Office. Id. at ¶ 20. Liberty is also a franchisor of the Liberty Tax Service® tax-preparation system, which sells income tax-preparation and filing services and products to the public under the Marks. Id. at ¶ 20. Liberty grants licenses to franchisees to use the Marks and participate in its confidential and proprietary business system [*3]  through written franchise agreements. Id. at ¶ 23.

Freedom is a tax-preparation service with eight locations in Kentucky, Indiana, and California. [DE 31 at 716]. Selimovic incorporated Freedom in 2017 and is president of the company. Id. at 715. Selimovic was also an officer of The Franchise Corp., a now-defunct tax-preparation business incorporated, owned, and operated by Marcus Warren. [DE 26, Tr. PI Hearing at 562:1-4]. The Franchise Corp. and Warren, both non-parties, were signatories to franchise agreements with Liberty (the “Franchise Agreements”). [See DE 33-1]. Neither Freedom nor Selimovic was a signatory to the Franchise Agreements or any other agreements with Liberty. [Id.; DE 22-1 at ¶ 3].

Under the Franchise Agreements, Warren owned several now-defunct Liberty Tax Service® franchises in Kentucky, Indiana, and California. [DE 33 at ¶ 27]. As part of the Franchise Agreements, Liberty provided Warren and The Franchise Corp., among other things, training in franchise operations, marketing, advertising, sales, and business systems, as well as confidential operating, marketing, and advertising materials unavailable to the public. Id. at ¶ 32.

In January, 2018, Freedom entered into a Republic [*4]  Bank Tax Refund Solutions ERO Agreement (the “Agreement”), which “governed the participation of [Freedom], as an electronic return originator . . . in Republic Bank’s ‘Electronic Bank Product Program’ (the ‘Program’) for the 2018-2019 tax season.” [DE 62-1 at 1071]. The Program allowed “a taxpayer, acting with [Freedom] as his or her agent” to “apply for certain banking products offered by Republic Bank, such as tax-refund.” Id.

Because of several violations of the Franchise Agreements, Liberty sent Notices to Cure Default to all Franchise Locations notifying Warren and The Franchise Corp. of various breaches of the Franchise Agreements. [DE 33 at ¶ 35]. After providing the requisite notice and opportunity to cure, Liberty terminated the Franchise Agreements. Id. at ¶ 36.

On January 30, 2018, Liberty sued Warren and The Franchise Corp. in the United District Court for the Eastern District of Virginia, alleging breach of the Franchise Agreements and trademark infringement.

On February 1, 2019, Liberty sued Freedom and Selimovic in this Court, alleging that:

Defendants Selimovic and Freedom Tax have collectively conspired with a former Liberty franchisee, Marcus Warren, to secretly and improperly [*5]  transfer the Franchise Business and assets from Warren to Defendants without Liberty’s knowledge or contractually required consent. Further, Defendants have misappropriated Liberty’s marks, manual and system, in an effort to operate a competing tax preparation business under the name “Freedom Tax” to circumvent and avoid the non-competition, post-termination, and non-solicitation provisions set forth in Warren’s Liberty Tax Service® Franchise Agreements with Liberty.

Id. at 775-776.

On June 6, 2019, Freedom and Selimovic (“Third-Party Plaintiffs”) sued Republic in this Court, alleging that:

On or about February 20, 2019, [Semilovic] received a phone call from a representative of Republic Bank advising that Liberty Tax directed Republic Bank to terminate all of FTI’s services with Republic Bank.

When [Semilovic] inquired why, she was advised Liberty Tax sent Republic Bank a Notice of Breach of Franchise Agreement that alleged breach of a separate agreement with Liberty Tax (which was unrelated to Third-Party Plaintiffs’ agreement with Republic Bank).

In fact, [Semilovic] was never a Liberty Tax franchisee, never signed a franchise agreement, and was not then, nor ever was, contractually obligated to Liberty [*6]  Tax in any way.

On the other hand, Third-Party Plaintiffs had, until unilaterally terminated by Republic Bank, a contractual relationship via Third-Party Plaintiffs’ Republic Bank Account.

Notably, the Liberty Parties and Republic Bank waited until the “peak” of tax season to take action against Third-Party Plaintiffs.

Approximately 70% of Third-Party Plaintiffs’ clients use the bank products Republic Bank provided, and as a result of the Liberty Parties’ interference, and Republic Bank’s improper, unilateral termination, the Third-Party Plaintiffs were seriously harmed during the 2019 tax season.

Specifically, because Third-Party Plaintiffs were unable to offer a substantial number of tax-related products and services, they lost more than sixty thousand dollars ($60,000) in profits.

[DE 42 at ¶ 11-17].

III. DISCUSSION

Third-Party Plaintiffs articulate two causes of action against Republic: tortious interference with prospective economic advantage and breach of contract. [DE 42 at 914-915]. Republic contends that the third-party complaint must be dismissed because Third-Party Plaintiffs have not properly alleged the material elements of either claim. [DE 55 at 994-995]. Third-Party Plaintiffs disagree, arguing they have done so. [DE 59 at 1031].

The Court agrees that the third-party complaint must be dismissed, but for a different reason than that advanced by Republic. The Court finds that it must dismiss the third-party complaint because it improperly seeks to implead Republic for separate causes of action that do not affect Third-Party Plaintiffs’ liability in this case. By failing to satisfy the requirements of Rule 14, the third-complaint fails to state a claim upon which relief may be granted and therefore must be dismissed. See State Auto. Mut. Ins. Co. v. Burrell, No. CV 5:17-300-DCR, 2018 U.S. Dist. LEXIS 72681, 2018 WL 2024617, at *4 (E.D. Ky. May 1, 2018)  [*10] (applying Kentucky law and dismissing third-party complaint under Rule 12(b)(6)); see Porter Casino Resort, Inc. v. Georgia Gaming Inv., LLC, No. 18-2231, 2019 U.S. Dist. LEXIS 126686, 2019 WL 3431746, at *3 (W.D. Tenn. July 30, 2019) (dismissing third-party complaint under Rule 12(b)(6) for failure to state a claim); see Wright & Miller, 6 Fed. Prac. & Proc. Civ. § 1460 (3d ed.) (“Although Rule 14(a) has never expressly provided for a motion to dismiss third-party claims, the federal courts have entertained both motions to dismiss and to strike and have not drawn distinctions between them.”).

First, Rule 14 requires that Third-Party Plaintiffs’ claims be based “upon the original plaintiff’s claim against the defendant.” Here, the third-party complaint is based on Republic’s allegedly improper termination of the Agreement. It is not based on Third-Party Plaintiffs’ alleged conspiracy to “secretly and improperly transfer the Franchise Business and assets” or to misappropriate Liberty’s “marks, manual and system.” The third-party complaint, which states an independent, but related cause of action, is thus not based on the original action. Cooper, 512 F.3d at 805 (“Rule 14(a) does not allow a third-party complaint to be founded on a defendant’s independent cause of action against a third-party defendant, even though arising out of the same occurrence underlying plaintiff’s [*11]  claim, because a third-party complaint must be founded on a third party’s actual or potential liability to the defendant”). Rule 14 further requires that Third-Party Plaintiffs’ claims depend on and be derivative of the claims in the original action. See Gookin v. Altus Capital Partners, Inc., No. CIV.A. 05-179-JBC, 2006 U.S. Dist. LEXIS 12980, 2006 WL 7132020, at *3 (E.D. Ky. Mar. 24, 2006) (“Liability is derivative where it is dependent on the determination of liability in the original action”). The third-party complaint here also fails to satisfy this requirement.

Second, the third-party complaint must also be “in the nature of an indemnity or contribution claim.” Cooper, 512 F.3d at 805. Under Kentucky law, the right to indemnity “is available to one exposed to liability because of the wrongful act of another” but who is not equally at fault with the wrongdoers. Degener v. Hall Contracting Corp., 27 S.W.3d 775, 780 (Ky. 2000). A right to indemnification arises in two scenarios:

(1) Where the party claiming indemnity has not been guilty of any fault, except technically, or constructively, as where an innocent master was held to respond for the tort of his servant acting within the scope of his employment;

or

(2) Where both parties have been in fault, but not in the same fault, towards the party injured, and the fault of the party from whom indemnity is claimed [*12]  was the primary and efficient cause of the injury

Id. (quoting Louisville Ry. Co. v. Louisville Taxicab & Transfer Co., 256 Ky. 827, 77 S.W.2d 36, 39 (1934)). “The right to contribution arises when two or more joint tortfeasors are guilty of concurrent negligence of substantially the same character which converges to cause the plaintiff’s damages.” Id. at 778.

Republic cannot indemnify Third-Party Plaintiffs because they have not been “exposed to liability” because of a wrongful act Republic committed against Liberty. In fact, no party has alleged that Republic has wronged Liberty. Third-Party Plaintiffs have also not pled that they are “an innocent master . . . held to respond” for the tort of Republic, their servant. Nor have they pled that both they and Republic are at fault in the original action, but that Republic is the “primary and efficient cause of the injury.” Third-Party Plaintiffs, likewise, cannot maintain a contribution action against Republic because Liberty alleged intentional, not negligent actions, and Republic played no role in the original action. Based on the allegations in the third-party complaint, Third-Party Plaintiffs have failed to plead that Republic has to indemnify or contribute to them in the original action. They have thus failed to state a claim under Rule 14 [*13]  on which relief can be granted.

Finally, allowing Third-Party Plaintiffs to continue to prosecute its third-party complaint after the underlying action has been dismissed does not further Rule 14’s purpose to prevent a “situation where a defendant has been adjudicated liable and then must bring a totally new action against a third party who may be liable to him for all or part of the original plaintiff’s claim against him.” It is “rare that a court . . . dismisses the underlying action but nonetheless chooses to address a third-party claim.” Cooper, 512 F.3d at 805-806 (6th Cir. 2008) (affirming district court’s dismissal of third-party complaint, stating “[h]owever, once the underlying action was settled, the continuing viability of Cooper Tire’s third-party complaint, as a derivative action, came under question and the district court did not abuse its discretion in dismissing the action . . . It was also Cooper Tire’s choice to agree to the Stipulated Order of Dismissal that dismissed its counterclaim against American Zurich with prejudice”). This is not that “rare” situation: Third-Party Plaintiffs have not sufficiently pled indemnity or contribution and thus not satisfied the requirements of Rule 14(a). As a result, under Rule 12 (b)(6), the third-party [*14]  complaint must be dismissed.

Court Dismisses Franchisee’s Racial Discrimination Claim for Termination

In case where plaintiffs-franchisees Nabil Gazaha and NAYAA, LLC (referred to individually and collectively as “Gazaha”) sued defendant KFC Corporation (“KFC”) setting forth claims for common law breach contract resulting from KFC’s termination of a franchise agreement and for race discrimination in violation of 42 U.S.C. § 1981, federal court in Virginia found, inter alia, that Gazaha failed as a matter of law to present evidence sufficient to establish a prima facie case of discrimination, or alternatively, any evidence of pretext necessary to rebut KFC’s asserted non-discriminatory reason for terminating the franchise agreement. KFC’s Motion for Summary Judgment on Defendants’ Counterclaims was GRANTED.

[Excerpt Regarding Racial Discrimination from case]

2016 WL 1245010

United States District Court, E.D. Virginia,

Alexandria Division.

KFC CORPORATION, Plaintiff,

v.

Nabil GAZAHA, et al., Defendants.

Civil Action No. 1:15-cv-1077 (AJT/JFA)

Signed 03/24/2016

With respect to Gazaha’s claim in Count II for intentional race discrimination and unlawful termination in violation of 42 U.S.C. § 1981, the Court finds that he has likewise failed to adduce evidence sufficient to allow a reasonable trier of fact to find in his favor. 42 U.S.C. § 1981(b) forbids racial discrimination in the making and enforcing of contracts. Section 1981 claims are properly analyzed under the Title VII framework. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 n.1 (4th Cir. 2002). Accordingly, the complaining party must come forward with “direct evidence” of racial discrimination or satisfy the McDonnell Douglas burden-shifting scheme. Davis v. Am. Soc. of Civil Eng’rs, 330 F. Supp. 2d 647, 654-55 (E.D. Va. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). “Direct evidence” of discrimination under McDonnell Douglas is defined as “conduct or statements that both (1) reflect directly the alleged discriminatory attitude, and (2) bear directly on the contested … decision.” Laing v. Fed. Express Corp., 703 F.3d 713, 717 (4th Cir. 2013) (internal quotations omitted). Such a showing of direct evidence “essentially requires an admission by the decision-maker that his actions were based on the prohibited animus.” Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000).

If there is no direct evidence of racial discrimination, then the complaining party must proceed under the McDonnell Douglas framework. First, the complaining party must establish a prima facie case of racial discrimination. In the context of Section 1981 claims concerning franchise terminations, the complaining party under McDonnell Douglas must show:

(1) that [they] are members of a protected class; (2) that the allegedly discriminatory conduct concerned one or more of the activities enumerated in the statute … and (3) that the [franchisor] treated the [franchisee] less favorably with regard to the allegedly discriminatory act than [the franchisor] treated other similarly situated persons who were outside the [franchisor’s] protected class.

Dunkin’ Donuts Franchised Restaurants LLC v. Sandip, Inc., 712 F. Supp. 2d 1325, 1328 (N.D. Ga. 2010); see also Holland v. Washington Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007) (applying similar test under McDonnell Douglas in context of employment discrimination).

Finally, if the complaining party establishes a prima facie case under McDonnell Douglas, then the defending party may articulate “a legitimate, nondiscriminatory reason for its adverse employment action.” Holland, 487 F.3d at 214 (internal quotations and citations omitted). “This burden … is a burden of production, not persuasion.” Id. If the defending party articulates such a non-discriminatory reason, the burden once again shifts and the claimant must “prove that [the other party]’s proffered reason was mere pretext and that race was the real reason for … termination.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir. 2000) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993)).

Gazaha offers only two pieces of evidence with regard to discrimination and neither of them is “direct.” First, Gazaha points to statements by Keilson and an unnamed KFC employee about his neighborhood not being “safe.” Second, he points to statistical evidence purporting to show that KFC terminates African-American-owned franchises at higher rates than Caucasian-owned franchises. [Doc. No. 72 at 14-16]. None of this evidence, separately or collectively, is sufficient to avoid summary judgment.

First, the alleged comments, even when taken in the light most favorable to Gazaha, are largely about the Baltimore neighborhood where the Outlet is located. That is, the allegedly racist comments made by Keilson and the unnamed KFC employee amount to statements that the neighborhood surrounding the restaurant is unsafe, that they did not want to leave a car there for fear of it being targeted for vandalism or robbery, and that did not want to visit the Outlet at night. Gazaha also claims that the offending parties made a reference to “you people,” and a comment that the health inspection issue is “black and white.” [Doc. No. 76 at 2-3]. The probative value of these isolated, casual comments is from zero to exceedingly marginal. More important is that none was made by anyone in a position of authority at KFC with the ability to terminate the Agreement.

Second, the statistical data, even data showing racial disparities, cannot by itself support a Title VII/Section 1981 claim for racial discrimination. Diamond v. T. Rowe Price Assoc., Inc., 852 F. Supp. 372, 408 (D. Md. 1994) (“In the Fourth Circuit … statistical evidence alone is insufficient to raise an inference of discriminatory intent in a disparate treatment case”); see also id. n.172 (citing cases); McKleskey v. Kemp, 481 U.S. 279, 297 (1987). Here, Gazaha has presented nothing other than statistical data as to the termination rates of KFC franchises. Without additional evidence that any of these terminations was racially motivated or evidence demonstrating that Gazaha himself was targeted for franchise termination because of his race, the statistical evidence, standing alone, is insufficient to create a triable issue of fact.

Gazaha further argues that termination of the Agreement was improper because the FSCC inspections were faulty and that the decision to terminate the Agreement was otherwise substantively incorrect. But in order to raise an inference of discrimination, a complaining party must argue something more than that the employment decision at issue was wrongly decided. Indeed, this argument is, as recognized by the Fourth Circuit, wholly “unexceptional.” Laing, 703 F.3d at 713 (“all [the complaining party] has proven is the unexceptional fact that she disagrees with the outcome of [the] investigation. But such disagreement does not prove … the burden shifting framework”).

Finally, even assuming arguendo that Gazaha could make out a prima facie case for race discrimination in violation of Section 1981, KFC offers a legitimate, nondiscriminatory business reason for terminating the Agreement: that Gazaha failed four consecutive health inspections. Although Gazaha disputes that these failed inspections justified the termination of the franchise, he offers no evidence that would raise an inference that KFC’s reasons for termination were a pretext for racial discrimination. Accordingly, Gazaha’s claims are, as a matter of law, insufficient to satisfy the McDonnell Douglas burden-shifting regime.

Court Rules Best Western is not a Franchise and Thus Not Liable for Franchise Act Violations

Best W. Int’l Inc. v. Twin City Lodging LLC, No. CV-18-03374-PHX-SPL, 2019 U.S. Dist. LEXIS 111696 (D. Ariz. July 3, 2019)

In a recent case in which the Plaintiff Best Western International Incorporated (the “Plaintiff”) filed suit against Twin City Lodging LLC, Percy Pooniwala, and Santha Kondatha alleging multiple causes of action related to the termination of a Best Western Membership Agreement (the “Membership Agreement”), and in which the Defendants argued that the Complaint must be dismissed because Best Western failed to comply with the requirements of the Minnesota Franchise Act by failing to abide by the disclosure requirements of the Minnesota Franchise Act when selling the franchise to Twin City Lodging LLC, the Court refused to rule that the  Membership Agreement was unenforceable because the plain terms of the Minnesota Franchise Act denote that the statute only applies to franchisors and franchisees, and the Court found that the Plaintiff was not a franchisor, as the Complaint clearly identified the Plaintiff as a non-profit corporation and never identified the Plaintiff as a franchisor or the Defendants as franchisees, instead describing the Plaintiff as a membership organization.

(Text of Excerpts from the Case Below)

Best Western Int’l Inc. v. Twin City Lodging LLC

United States District Court for the District of Arizona

July 3, 2019, Decided; July 3, 2019, Filed

No. CV-18-03374-PHX-SPL

Reporter

2019 U.S. Dist. LEXIS 111696 *

Best Western International Incorporated, Plaintiff, vs. Twin City Lodging LLC, et al., Defendants.

ORDER

Plaintiff Best Western International Incorporated (the “Plaintiff”) filed suit against Twin City Lodging LLC, Percy Pooniwala, and Santha Kondatha alleging multiple causes of action related to the termination of a Best Western Membership Agreement (the “Membership Agreement”). (Doc. 1 at 2) The Defendants moved to dismiss the Plaintiff’s claims against them (the “Motion”). (Doc. 18) The Court’s ruling is as follows.

1. Background

The Plaintiff is a non-profit corporation that serves its members, who are independent owners and operators of Best Western branded hotels. (Doc. 1 at 3) On September 29, 2016, Twin [*2]  City Lodging LLC and Pooniwala executed the Membership Agreement, by which they joined the community of members operating Best Western branded hotels. (Doc. 1 at 2) On August 31, 2017, Kondatha executed an “Application for Change in Voting Member/Voter Registration Card” through which he agreed to be bound by the Membership Agreement in exchange for designation as a voting member of the organization. (Doc. 1 at 2; Doc. 1-2 at 21)

On July 26, 2018, the Plaintiff notified Twin City Lodging LLC, Percy Pooniwala, and Santha Kondatha that their membership with the Plaintiff had been terminated for failure to abide by the terms and conditions of certain regulatory documents. (Doc. 1 at 12) Following the termination of Twin City Lodging LLC’s membership status, the Plaintiff alleges that Twin City Lodging LLC continued to operate while unlawfully using Best Western exterior signage, internet advertising, and other branded items. (Doc. 1 at 12) The Plaintiff initiated this lawsuit seeking damages for breach of contract and trademark infringement, among other claims. (Doc. 1 at 14-18) The defending parties filed the Motion seeking to dismiss that Plaintiff’s claims pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). (Doc. 18) [*3]

1. Legal Standard
2. 12(b)(2)

A plaintiff bears the burden of establishing personal jurisdiction. Repwest Ins. Co. v. Praetorian Ins. Co., 890 F. Supp. 2d 1168, 1184-85 (D. Ariz. 2012). When a defendant moves to dismiss a complaint for lack of personal jurisdiction, “the plaintiff is ‘obligated to come forward with facts, by affidavit or otherwise, supporting personal jurisdiction'” over the defendant. Cummings v. W. Trial Lawyers Assoc., 133 F. Supp. 2d 1144, 1151 (D. Ariz. 2001). In the absence of an evidentiary hearing on the issue of personal jurisdiction, a plaintiff must only make “a prima facie showing of jurisdictional facts through the submitted materials” in order to avoid dismissal for lack of personal jurisdiction. Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). Because no applicable federal statute governing personal jurisdiction exists, Arizona’s long-arm statute applies. Terracom v. Valley Nat’l Bank, 49 F.3d 555, 559 (9th Cir. 1995). Arizona’s long-arm statute provides for personal jurisdiction to the extent permitted by the Due Process Clause of the United States Constitution. Ariz. R. Civ. P. 4.2(a).

Absent traditional bases for personal jurisdiction (i.e., physical presence, domicile, and consent), the Due Process Clause requires that a nonresident defendant have certain minimum contacts with the forum state such that the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice. See Doe v. Am. Nat’l Red Cross, 112 F.3d 1048, 1050 (9th Cir. 1997) (citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). “In determining whether a defendant had minimum contacts with the forum state such that [*4]  the exercise of jurisdiction over the defendant would not offend the Due Process Clause, courts focus on ‘the relationship among the defendant, the forum, and the litigation.'” Brink v. First Credit Res., 57 F. Supp. 2d 848, 860 (D. Ariz. 1999). If a court determines that a defendant’s contacts with the forum state are sufficient to satisfy the Due Process Clause, then the court must exercise either “general” or “specific” jurisdiction over the defendant. Doe, 112 F.3d at 1050. The nature of the defendant’s contacts with the forum state will determine whether the court exercises general or specific jurisdiction over the defendant. Doe, 112 F.3d at 1050-51.

1. 12(B)(6)

To survive a motion to dismiss, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” such that the defendant is given “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting Fed. R. Civ. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). The Court may dismiss a complaint for failure to state a claim under Federal Rule 12(b)(6) for two reasons: (1) lack of a cognizable legal theory, and (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

In deciding a motion to dismiss, the Court must “accept as true all well-pleaded allegations of material fact, and construe them in the light most favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). In comparison, [*5]  “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences” are not entitled to the assumption of truth, and “are insufficient to defeat a motion to dismiss for failure to state a claim.” Id.; In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). A plaintiff need not prove the case on the pleadings to survive a motion to dismiss. OSU Student All. v. Ray, 699 F.3d 1053, 1078 (9th Cir. 2012).

III. Analysis

Defendants Pooniwala, Kondatha, and Twin City Lodging LLC move to dismiss all of the Plaintiff’s claims because (i) the Complaint does not state any plausible claim against Defendant Pooniwala, (ii) the Complaint does not state any plausible claim against Defendant Kondatha, (iii) the Plaintiff fails to comply with Minnesota Franchise Act, and (iv) the Court does not have personal jurisdiction over Pooniwala, Kondatha, or Twin City Lodging LLC. (Doc. 18 at 2) The Parties filed a stipulation to dismiss Defendant Pooniwala. (Doc. 24; Doc. 23 at 2) Therefore, the Court will move forward with addressing the remaining issues presented against Defendants Twin City Lodging LLC and Santha Kondatha (together, the “Defendants”).

1. Claims Against Defendant Kondatha

The Defendants argue that the Complaint fails to state a plausible claim against Kondatha because the [*6]  Complaint does not allege that Kondatha received any consideration for agreeing to the Membership Agreement. (Doc. 18 at 6-7) Specifically, the Defendants argue that in order for the Plaintiff to assert a plausible breach of contract claim, the Plaintiff must allege facts sufficient to demonstrate that there was a valid contract between the parties, which includes alleging a valid offer, acceptance, and exchange of consideration during the formation of the contract. (Doc. 18 at 6-7) In response, the Plaintiff argues that the allegations in the Complaint demonstrate that Kondatha received consideration in the form of Kondatha obtaining the benefits of becoming a voting member after signing the Membership Agreement. (Doc. 23 at 6)

It is well settled under Arizona law that every contract in writing imports consideration. Ariz. Rev. Stat. Ann. § 44-121 (stating “[e]very contract in writing imports a consideration.”). Furthermore, “[i]t is the ordinary rule of pleading that, where a suit is based upon an instrument which as a matter of law imports a consideration, it is not necessary that a consideration be pleaded, nor can a want or failure thereof be offered in defense under a general denial.” Sapp v. Lifrand, 44 Ariz. 321, 36 P.2d 794, 796 (1934); Reel Precision, Inc. v. FedEx Ground Package Sys., Inc., 2016 U.S. Dist. LEXIS 106404, 2016 WL 4194533, at 6 (D. Ariz. Aug. 9, 2016) (stating “a party [*7]  suing on a contract in writing need not plead consideration and a party denying consideration must plead it specially, not by general denial”). It is undisputed that the Membership Agreement and Kondatha’s application to sign onto the Membership Agreement were contracts made in writing. (Doc. 1-2 at 13-20; Doc. 1-2 at 21) Accordingly, the Defendants’ argument must fail, and the Motion cannot be granted on this basis.

1. Minnesota Franchise Act

Next, the Defendants argue that the Complaint must be dismissed because the Plaintiff has failed to comply with the requirements of the Minnesota Franchise Act. (Doc. 18 at 7-9) Specifically, the Defendants argue that the Plaintiff failed to abide by the disclosure requirements of the Minnesota Franchise Act when selling the franchise to Twin City Lodging LLC, thus rendering the Membership Agreement unenforceable. (Doc. 18 at 9) In response, the Plaintiff argues that it is not a franchisor and is therefore not bound by the Minnesota Franchise Act. (Doc. 23 at 7)

Taking the facts in the light most favorable to the Plaintiff, the Court finds that the Plaintiff is not a franchisor, as the Complaint clearly identifies the Plaintiff as a non-profit corporation [*8]  and never identifies the Plaintiff as a franchisor or the Defendants as franchisees. (Doc. 1 at 1) Furthermore, the terms of the Membership Agreement describe the Plaintiff as a membership organization. (Doc. 1-2 at 13) The plain terms of the Minnesota Franchise Act denote that the statute only applies to franchisors and franchisees. Minn. Stat. Ann. § 80C.01. Accordingly, the Court declines to find that the Plaintiff’s alleged non-compliance with the Minnesota Franchise Act is sufficient to dismiss all of the Plaintiff’s claims against the Defendants, and the Motion to Dismiss on this basis must be denied.

1. Personal Jurisdiction

Finally, the Defendants argue that the Plaintiff does not have personal jurisdiction over the Defendants. (Doc. 18 at 2, 10) The Court will assume that the Defendants meant to argue that the Court does not have personal jurisdiction over the Defendants. The Defendants argue that the Court does not have personal jurisdiction in this case because (i) the Plaintiff cannot establish that the Defendants maintained “continuous corporate operations” in Arizona, and (ii) the Plaintiff cannot establish that the Defendants “had any business in Arizona or had any purposeful activities within [*9]  the state of Arizona.” (Doc. 18 at 10) In response, the Plaintiff argues that the Membership Agreement contains an “Application of Law and Choice of Forum” provision which states that all disputes arising under the Membership Agreement are to be resolved under Arizona law in Arizona courts. (Doc. 23 at 3; Doc. 1-2 at 18; Doc. 1 at 2)

Under general contract principles, a forum selection clause may give rise to waiver of objections to personal jurisdiction, provided that the defendant agrees to be so bound. Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 458 (9th Cir. 2007); S.E.C. v. Ross, 504 F.3d 1130, 1149 (9th Cir. 2007) (stating that courts “have held that a party has consented to personal jurisdiction when the party took some kind of affirmative act—accepting a forum selection clause, submitting a claim, filing an action—that fairly invited the court to resolve the dispute between the parties.”); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, n. 14, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). A forum selection clause “represents the parties’ agreement as to the most proper forum.” Atl. Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S. 49, 63, 134 S. Ct. 568, 187 L. Ed. 2d 487 (2013). A court should refuse to enforce a forum-selection clause “[o]nly under extraordinary circumstances unrelated to the convenience of the parties.” Adema Techs., Inc. v. Wacker Chem. Corp., 657 F. App’x 661, 662 (9th Cir. 2016). The “enforcement of valid forum-selection clauses, bargained for by the parties, protects their legitimate expectations and furthers vital interests of the justice [*10]  system.” Atl. Marine, 571 U.S. at 63.

Taking the facts in the light most favorable to the Plaintiff for the purpose of rendering a decision on this Motion, the Court finds that the Membership Agreement is a valid contract with a valid forum selection clause. At no point in the Motion do the Defendants dispute the validity of the forum selection clause present in the Membership Agreement. And, at this time, the Court finds that the Defendants have failed to make a persuasive argument for why the forum selection clause present in the Membership Agreement does not submit the Defendants to the jurisdiction of this Court.

The United States Circuit Court for the Tenth Circuit ruled that a restaurant franchisor, Dickey’s Barbecue, was not entitled to require arbitration of disputes between it and a new franchisee, who had purchased the restaurant from a prior franchisee, because the new franchisee had never executed a franchise agreement, and because Utah law required that an arbitration agreement be contained in a written document setting forth the scope of the dispute to be arbitrated; without a signed franchise agreement between the new franchisee after its purchase of the franchise from a prior franchisee, the franchisor could not demonstrate—through recourse either to the text of the asset purchase agreement or evidence presented to bolster its “course of dealing” theory—that the new franchisee ever assumed the written obligations of the prior franchisee, including specifically the agreement to arbitrate disputes.

Campbell Invs., LLC v. Dickey’s Barbecue Rests., Inc., No. 18-4055, 2019 U.S. App. LEXIS 26980 (10th Cir. Sep. 6, 2019)

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Campbell Invs._ LLC v. Dickey_s Barbecue Rests._ Inc._

In a Colorado federal court case interpreting the Amended Colorado Car Dealer Act in which the car dealer agreement “expressly reserved” for the defendant car manufacturer “the unrestricted right to grant others the right to sell Kia products,” and noted also that plaintiffs are “not being granted an exclusive right to sell Kia products in any specified geographic area,” and stated that defendant “may add new dealers to, relocate dealers into or remove dealers from” the geographic area “as permitted by applicable law”, and where the plaintiff franchisee dealers alleged that defendant’s plan to establish the proposed dealership violated Colo. Rev. Stat. § 44-20-125 (“CDA”), a statute which creates a private right of action for “an existing motor vehicle dealer adversely affected by” a distributor’s plan to reopen, relocate, or establish a “same line-make motor vehicle dealer,” and where the CDA requires any manufacturer seeking to “establish an additional motor vehicle dealer, reopen a previously existing motor vehicle dealer, or authorize an existing motor vehicle dealer to relocate” to provide at least sixty days notice to all of its existing dealers “within whose relevant market area the new, reopened, or relocated dealer would be located”, and where the CDA was amended to define the “relevant market area” as the greater of “the geographic area of responsibility defined in the franchise agreement of an existing dealer” and “the geographic area within a radius of ten miles of any existing dealer of the same line-make of vehicle as the proposed additional motor vehicle dealer,” the car manufacturer would be held to the new ten miles benchmark, not the old five miles standard.

DC Auto., Inc. v. Kia Motors Am., Inc., Civil Action No. 19-cv-00318-PAB-MEH, 2019 U.S. Dist. LEXIS 150481 (D. Colo. Sep. 3, 2019)

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DC Auto._ Inc. v. Kia Motors Am._ Inc._ 2019 U.S. Dist

In this breach of contract and trademark infringement case, where the pizza restaurant franchisor, Little Caesars Enterprises, Inc., sued the franchisee operators of several pizza restaurants for repeatedly violating the franchise agreement by, inter alia, violating operational standards, failing to pay royalties, and operating with the Little Caesars trademarks after the franchise terminations, the United States District Court for the Eastern District of Michigan granted the franchisor’s request for a preliminary injunction, thereby shutting down the franchisees’ operation of the restaurants pending trial; in so doing, the Court rejected resoundingly the franchisees’ poorly constructed and irrelevant legal and factual defenses to the preliminary injunction.

Little Caesar Enters., United States District Court for the Eastern District of Michigan, Southern Division, July 16, 2019, Decided, 2019 U.S. Dist. LEXIS 117942

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Little Caesar Enters._ 2019 U.S. Dist. LEXIS 117942

The United States District Court for the District of New Jersey rejected the petroleum franchisor’s request to dismiss on summary judgment the gasoline dealer franchisee’s case for wrongful termination because, according to the Court, the defendant bears the burden of proof in actions under the PMPA, and the bulk of defendant’s evidence was testimonial and thus subject to credibility determinations; material disputes existed regarding the following facts, going to the franchisor’s good faith in demanding changes to the renewal agreement:

(1) the existence of a formula for calculating increases in rent at Defendant’s franchises — although Defendant contended such a policy exists, it cited oral deposition, in-court testimony, or affidavits, uncorroborated by any written policy;

(2) whether the petroleum franchisor’s employees, Deakin and McGee, in fact warned plaintiff that rental values would increase when they initially met;

(3) whether the franchisor’s employees, Deakin and McGee, suggested, during that initial meeting, that plaintiff franchisee could operate a truck stop at the property;

(4) whether defendant failed to provide the franchisee dealer with training; whether the franchisee’s need for training was apparent; and whether the franchisor had a training program that was available;

(5) whether the franchisor placed franchisee dealer’s account on COD status in retaliation for her request to operate the station as a commission;

(6) whether the franchisor defendant had a motive not to renew the agreement, as shown by the strained relationship between Sathu, Deakin, and McGee;

(7) defendant franchisor received an offer from Tim Horton’s to open a franchise at the location; and

(8) the substantial increase in rent, which the Court noted was not conclusive of bad faith on the part of Defendant but was nonetheless relevant.

Four S Shell, LLC v. PMG, LLC, Civil Action No. 3:16-cv-5701 (PGS) (TJB), 2019 U.S. Dist. LEXIS 115034 (D.N.J. July 11, 2019)

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Tyler, the Franchisee Dealer, alleged a violation of the Automobile Dealers’ Day in Court Act; breach of contract; and tortious interference with existing contractual relations; all arising out of the Pierce defendants’ allegedly unlawful and fraudulent conduct toward Tyler concerning the marketing, sale, and service of fire and rescue trucks and related goods and equipment in the States of New York and Pennsylvania; the Court, however, dismissed the Franchisee Dealer’s claims because the Automobile Dealers’ Day in Court Act does not cover fire trucks; a contract terminable at will cannot be the basis of a tortious interference claim; and “in the absence of explicit contractual language stating that a party may not unreasonably withhold consent, parties may withhold consent for any reason or no reason, and that no implied obligation to act in good faith exists to limit that choice.”

Tyler Fire Equip., LLC v. Oshkosk Corp., No. 14-CV-6513-CJS, 2019 U.S. Dist. LEXIS 104539 (W.D.N.Y. June 21, 2019)

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Tyler Fire Equip._ LLC v. Oshkosk Corp._ 2019 U.S. Dist

Plaintiff Nurse Next Door Home Healthcare Services (USA), Inc.’s Motion for Default Judgment against Defendant Four Gloves, Inc., the franchisee, is GRANTED in part and DENIED in part, such that Plaintiff is entitled to damages of unpaid fees of $55,000 and royalties of $81,250, totaling $136,250, based primarily on the Court’s conclusion that Nurse Next Door is entitled to that amount which “to the extent possible, put[s] the injured party in as good a position as that party would have been in had the contract been performed,” specifically royalty payments for the five-year term, but specifically not those other fees (7% and a monthly technology fee), since under the Franchise Agreement the latter fees assumed the use by the franchisee of the Nurse Next Dorr’s Care Services Center, which, due to the termination, had never been made by the franchisee.

Nurse Next Door Home Healthcare Servs. (USA) v. Four Gloves, Inc., Civil Action No. 8:18-cv-02101-PX, 2019 U.S. Dist. LEXIS 106612 (D. Md. June 26, 2019)

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Federal Court ruled in favor of franchisor GNC in setting aside a default entered against it where the franchisor asserted that the failure to timely respond fell short of constituting culpability because it was attributable to a mere miscommunication between GNC’s litigation counsel and GNC’s in-house legal department, and where GNC further contended that the existence of meritorious defenses to Plaintiffs’ claims and corresponding lack of prejudice to Plaintiffs warranted setting aside the clerk’s entry of default; and where Plaintiffs opposed GNC’s Motion on the basis that GNC’s explanation for its untimely participation in this matter evinced a deliberate, strategic choice rather than a negligent oversight.

Kyllonen v. GNC Franchising, LLC, No. 2:18-cv-01526-GMN-BNW, 2019 U.S. Dist. LEXIS 99822 (D. Nev. June 13, 2019)

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