Brown v. W. Sky Fin., LLC, 1:13CV255.

84 F.Supp.3d 467

Thomas BROWN, Monica Johnson, Melinda Long, Renee Holmes, Kevin Hayes, Leslie Jan Lydon, and Elizabeth Jackson, on behalf of themselves and a class of persons similarly situated, Plaintiffs

v.WESTERN SKY FINANCIAL, LLC, Payday Financial, LLC, Cashcall, Inc., John Paul Reddam, WS Funding, LLC, and Delbert Services Corporation, Defendants.

No. 1:13CV255.

United States District Court, M.D. North Carolina.

Signed Jan. 30, 2015.

John S. Hughes, Mona Lisa Wallace, Aaron F. Goss, Wallace and Graham, P.A., Salisbury, NC, for Plaintiffs.

Hayden J. Silver, III, Raymond M. Bennett, Womble Carlyle Sandridge & Rice, PLLC, Raleigh, NC, Brian J. Fischer, Katya Jestin, Neil M. Barofsky, Jenner & Block, LLP, New York, NY, for Defendants.

Western Sky Dakota Holding Company, pro se.

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge.

Plaintiffs Thomas Brown and Monica Johnson initially filed this lawsuit on March 28, 2013, against Defendants Western Sky Financial, LLC; 24 Seven Solution, LLC; 24–7 Cash Direct, LLC; Advance Wireless, LLC; Dekake Ranch, LLC; Financial Solutions, LLC; Great Plains Lending, LLC; Great Sky Finance, LLC; Green Billow, LLC; High Country Ventures, LLC; Horizons Consulting, LLC; Interim Holding Company; Management Systems, LLC; Native Imagination, LLC; New Holding Company; Payday Financial, LLC; Red River Ventures, LLC; Red Stone Financial, LLC; Webb Ranch, LLC; Western Capital, LLC; Western Sky Dakota Holding Company; Martin A. Webb; and CashCall, Inc. (Complaint (Doc. 1).)

On August 13, 2013, Plaintiffs Brown and Johnson filed their First Amended Complaint, removing Defendant Western Sky Dakota Holding Company as a Defendant and adding Defendants John Paul Reddam, WS Funding, LLC, and Delbert Services Corporation. (First. Am. Complaint (Doc. 47).)¹

Pursuant to a stipulated order (Doc. 88), Plaintiffs Brown and Johnson, joined by Plaintiffs Melinda Long, Renee Holmes, Kevin Hayes, Leslie Jan Lydon, and Elizabeth Jackson, (collectively “Plaintiffs”) filed their Second Amended Complaint on January 23, 2014, against Defendants Western Sky Financial, LLC (“Western Sky”); Payday Financial, LLC (“Payday”); CashCall, Inc. (“CashCall”); John Paul Reddam (“Reddam”); WS Funding, LLC (“WS Funding”); and Delbert Services Corporation (“Delbert”).² (Doc. 89.) On February 10, 2014, Defendants Payday and Reddam filed their Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 91) and all Defendants filed their Omnibus Motion to Dismiss (Doc. 93).

Presently, there are four pending motions before the court: (1) Motion to Dismiss for Lack of Jurisdiction by Defendants Payday and Reddam (Doc. 91); (2) all Defendants' Omnibus Motion to Dismiss (“Omnibus Motion”) (Doc. 93); Plaintiffs' Motion Requesting Discovery on Preliminary Issues (Doc. 98); and (4) Defendants' Cross–Motion to Stay Discovery (Doc. 104).

In order to rule on the pending motions, this court must first address the forum selection clauses included in all of Plaintiffs' loan agreements. This is a threshold issue, because it determines proper venue for the current action. Variations of the forum selection clauses, granting almost exclusive jurisdiction to the Cheyenne River Sioux Tribe (“CRST”), have been the subject of litigation throughout the United States. Analysis of this litigation suggests that courts have addressed the forum selection clause in three ways: (1) the forum selection clause has been found unenforceable;³ (2) the forum selection clause has been enforced;⁴ or (3) the CRST has been provided an initial opportunity to determine the enforceability of the forum selection clause using the tribal exhaustion doctrine.⁵

For the reasons described in detail in this Memorandum Opinion and in order to ensure that this matter is before the proper tribunal, this court finds most persuasive the cases holding tribal court exhaustion appropriate on the threshold issue of tribal court jurisdiction. Therefore, Defendants' Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 91) will be denied without prejudice pending the determination of tribal court jurisdiction. Defendants' Omnibus Motion (Doc. 93) will be granted in part in light of this court dismissing current proceedings without prejudice pending tribal court exhaustion and denied in part in that this court will not compel arbitration at this time. Finally, Plaintiffs' Motion for Discovery on Preliminary Issues (Doc. 98) and Defendants' Cross–Motion to Stay Discovery (Doc. 104) will be denied without prejudice.

I. FACTS

Plaintiffs filed the present action, a class action lawsuit, on behalf of North Carolina residents who have borrowed money from Defendants using “payday loans.” Plaintiffs allege these loans are unlawful under North Carolina law forbidding “payday loan” arrangements, i.e., loans of relatively small amounts with high interest rates. Plaintiffs also allege putative class action claims on behalf of consumers in other states whose rights were allegedly violated by these loans. (Second Am. Complaint (“Compl.”) (Doc. 89) at 1.)⁶

Each named Plaintiff is a citizen and resident of North Carolina and each named Plaintiff entered into a loan agreement with Defendant Western Sky and related entities. (Id. at 4–5.) Western Sky advertised primarily on television and any resulting loans were procured through internet and telephone transactions. (Id. at 5.) No loans were made in person. (Id. at 15.) Western Sky no longer offers such loans. (Id. at 19 n. 7.) Plaintiffs filed the present action to recover monies collected by Defendants that Plaintiffs claim was in violation of both North Carolina and federal law.⁷

At issue in the present action is whether or not this court has jurisdiction over these proceedings or, in the alternative, whether the contracts between the parties conferred jurisdiction on the CRST, and which court should make the initial determination. Western Sky is a limited liability company chartered under the law of South Dakota.⁸ (Id. at 5.) Its principal place of business is in South Dakota. (Id. ) Non-party Martin Webb (“Webb”) is the owner and president of Western Sky and a resident of South Dakota. (Id. at 5.) Western Sky holds that it is owned by a member of the CRST. (Id. Ex. 3 at 2.)

The other Defendants are entities or individuals allegedly related to Western Sky's lending practice. Payday is a limited liability company chartered under the law of South Dakota with its principal place of business there. (Id. at 5.) Payday was the sole member of Western Sky during the time the Plaintiffs' loans were made and maintained. (Id. ) CashCall is a California corporation with its principal place of business in California. CashCall was assigned many of Western Sky's loans. (Id. at 6.) Reddam is the President and CEO of CashCall and is CashCall's sole stock owner. (Id. ) WS Funding, LLC is a wholly-owned subsidiary of CashCall. (Id. ) WS Funding is a Delaware LLC and has a registered agent in Delaware. Reddam is the president of WS Funding. (Id. ) Delbert is a Nevada corporation and Reddam is the sole director and owner. (Id. at 7.)

Plaintiffs allege that each Defendant had a specific role in the issuance and servicing of Plaintiffs' payday loans. Generally, to obtain a loan, a potential borrower would contact Western Sky via the internet or over the telephone. Plaintiffs applied for and received loans from Western Sky. When the loan was approved, funds were directly transferred from Western Sky to the borrower's bank account. (Id. at 17.) Following the execution of the loan agreement, loans were immediately transferred from Western Sky to CashCall. All Plaintiffs' payments were made to CashCall. If any Plaintiff defaulted on a loan, CashCall and Delbert made collection efforts. (Id. at 14–15.)

The loans ranged in amounts from $300 to $3,000 and were payable in monthly installments. The terms ranged from 12 to 84 months. (Id. at 16.) According to the Complaint, the annual percentage rates ranged from 90 percent to over 300 percent. (Id. ) For example, Plaintiff Thomas Brown (“Brown”) obtained a loan for $2,600 from Western Sky. Western Sky retained $75, so Brown received $2,525 in the form of a loan. In exchange, Brown agreed to make 40 monthly payments at a nominal APR of 139 percent/effective APR of 273 percent, resulting in total payments of $14,102.87 to Western Sky. (Id. at 22.)

Defendants' pending motions to dismiss argue that Plaintiffs' loan agreements all contain enforceable forum selection and arbitration clauses rendering jurisdiction in this court inappropriate. Illustrative of the forum selection clauses and arbitration agreements, Plaintiff Monica Johnson's (“Johnson”) August 17, 2011 loan agreement contained the following provision:

Agreement to Arbitrate. You agree that any Dispute, except as provided below, will be resolved by Arbitration, which shall be conducted by the Cheyenne River Sioux Tribal Nation by an authorized representative in accordance with its consumer dispute rules and the terms of this Agreement.

(Compl., Ex. 2, Monica Johnson Loan Agreement & Declaration (Doc. 89–2) at 4.) In addition, Johnson's loan agreement contains a choice of arbitrator:

Arbitration shall be conducted in the Cheyenne River Sioux Tribal Nation by a panel of three Tribal Elders and shall be conducted in accordance with the Cheyenne River Sioux Tribal Nation's consumer rules and the terms of this Agreement.

(Id. at 5.) Except for Brown's loan agreement, all of the loan agreements for the named Plaintiffs are similar to Johnson's in regard to the forum selection and arbitration agreements.

Brown's loan agreement (Id., Ex. 1, Thomas Brown Loan Agreement & Affidavit (Doc. 89–1)) is the most recent and contained different language. In Brown's agreement, dated July 5, 2012, the paragraph entitled, “Agreement to Arbitrate,” states that, “You agree that any Dispute, except as provided below, will be resolved by Arbitration, which shall be conducted by the Cheyenne River Sioux...