United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge.
matter is before the Court on defendant Wells Fargo Clearing
Services, LLC's (“Wells Fargo”) Motion to
Dismiss, or in the Alternative, to Transfer Venue (Filing No.
6). For the reasons stated below, the Motion is granted in
part and denied in part, and plaintiff Ford Robinson
Partnership's (“Ford Robinson”) Second
Amended Complaint (Filing No. 1-1, pp. 71-74) is dismissed as
to Wells Fargo.
Robinson, a Nebraska partnership, desired $6, 000, 000 in
funding to acquire Techota, LLC (“Techota”), a
home-healthcare business located in Alabama. On September 2,
2016, Mike Barbee (“Barbee”), an individual
associated with the Texas entity First Mutual Funding
(“First Mutual”), contacted Ford Robinson about
providing the funding. Barbee represented that he; Hollis
Lorenzo Maxfield (“Maxfield”), an “employee
or agent” of Alpha E Angel, LLC (“Angel”),
a Texas company; and Gerald Lewis (“Lewis”), an
“employee or agent” of Wells Fargo, would be able
to obtain $6, 000, 000 in financing for Ford
Robinson and Maxfield executed a Wells Fargo Advisor Limited
Liability Company Authorization, and Lewis opened a brokerage
account at Wells Fargo that Maxfield and Ford Robinson
allegedly could only use with joint signatures. On September
29, 2015, Ford Robinson deposited $99, 962 into the account.
On November 19, 2015, Maxfield withdrew the money from the
brokerage account. Maxfield apparently cannot be found.
December 12, 2017, Ford Robinson filed its Second Amended
Complaint (Filing No. 1-1, pp. 71-74) in the District Court
of Douglas County, Nebraska, alleging one count of fraudulent
misrepresentation against Maxfield, Angel, Barbee, First
Mutual, 4 Horsemen, LLC,  Lewis, and Wells Fargo. Citing
diversity jurisdiction, Wells Fargo removed the case to
federal court on January 5, 2018. See 28 U.S.C.
§§ 1332, 1441, and 1446. Wells Fargo filed the
present Motion on January 12, 2018.
Fargo seeks dismissal of the Complaint against it for failure
to state a claim and lack of personal jurisdiction, or, in
the alternative, to transfer the case to the United States
District Court for the Northern District of Texas where
personal jurisdiction allegedly exists. See Fed. R.
Civ. P. 12(b)(2) and (6); 28 U.S.C.
Fargo and Ford Robinson have each filed Indexes (Filing Nos.
8 and 14) of evidence that mainly relate to the issue of
personal jurisdiction. “When personal jurisdiction is
challenged by a defendant, the plaintiff bears the burden to
show that jurisdiction exists.” Fastpath, Inc. v.
Arbela Techs. Corp., 760 F.3d 816, 820 (8th Cir. 2014).
The Court doubts Ford Robinson has met this burden because
its evidence points only to the fact that Wells Fargo is
registered to do business in Nebraska and does business in
the State, nothing more. However, due to the confusing and
opaque nature of the Second Amended Complaint (and the Brief
in Opposition to Defendant's Motion to Dismiss or
Transfer Venue),  the Court will assume only for the purpose
of the pending Motion that jurisdiction exists, and will
proceed to analyze the clearer issue - whether Ford Robinson
has stated a claim against Wells Fargo.
Choice of Law
brief, Wells Fargo raised the issue of choice of law.
“A district court sitting in diversity must apply the
conflict of law rules for the state in which it sits.”
Inacom Corp. v. Sears, Roebuck & Co., 254 F.3d
683, 687 (8th Cir. 2001). “In choice-of-law
determinations, [the Nebraska Supreme Court] often seek[s]
guidance from the Restatement (Second) of Conflict of
Laws.” Erickson v. U-Haul Int'l, 767
N.W.2d 765, 772 (Neb. 2009); accord Inacom, 254 F.3d
at 687 (“In deciding choice of law questions, Nebraska
follows the Restatement (Second) of Conflict of
Laws.”). Section 148 of the Restatement governs the
tort of fraudulent misrepresentation.
Court determines Nebraska law applies because Nebraska is (1)
“the place . . . where [Ford Robinson] acted in
reliance upon the defendant[s'] representations, ”
(2) “the place where [Ford Robinson] received the
representations, ” and (3) the “residence . . .
and place of business” of Ford Robinson. Restatement
(Second) of Conflict of Laws § 148(2) (1971).
Failure to State a Claim
survive a motion to dismiss for failure to state a claim, a
plaintiff must plead ‘enough facts to state a claim to
relief that is plausible on its face.'” Roe v.
Nebraska, 861 F.3d 785, 787 (8th Cir. 2017) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim is facially plausible when it alleges
facts that allow the court to ‘draw the reasonable
inference that the ...