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Smith v. Oasis Legal Finance, LLC

United States District Court, M.D. Florida, Tampa Division

October 31, 2017

HEATHER SMITH, individually and on behalf of all those similarly situated, Plaintiff,
v.
OASIS LEGAL FINANCE, LLC d/b/a OASIS FINANCE, Defendant.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.

         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 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 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.

         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). 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 ...


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