United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM AND ORDER
ORLANDO L. GARCIA CHIEF UNITED STATES DISTRICT JUDGE
the Court is Defendant USAA Federal Savings Bank's Motion
to Dismiss for failure to state a claim for relief pursuant
to Rule 12(b)(6) (docket no. 8). For the reasons explained
below, Defendant's motion is GRANTED in part, DENIED in
part, and deemed MOOT in part.
dispute concerns an alleged settlement agreement (the
"Agreement") between Plaintiff Nico Schweiger
("Plaintiff), Plaintiffs debt relief company
("NDR"), Defendant USAA Federal Savings Bank
("USAA"), and USAA's debt collector, Defendant
Alltran Financial, LP ("Alltran"). The alleged
Agreement, which was sent from Alltran to NDR on October 11,
[USAA] has agreed to accept the offer of 12 payment(s)
totaling $4, 112.00 as settlement for monies owing on
[Plaintiffs] above referenced account. Please make
[NDR's] or [Plaintiffs] check or money order payable to
[USAA]. The terms of the agreement are:
[Chart listing required payment dates and corresponding
settlement offer is void if the agreed payments are not made
as stated above. Docket no. 1-2. Following entry of the
Agreement, Plaintiff alleges that he timely made the first
two requisite settlement payments by placing the funds in a
trust account for Defendants' withdrawal and processing.
Docket no. 1 ¶¶ 13-15. However, Plaintiff alleges
that the payments were never withdrawn or processed from the
account. Id. Plaintiff further alleges that
Defendants notified Plaintiff that the account had been
recalled and that the Agreement would not be honored.
Id. ¶¶ 16-17.
filed this action on July 20, 2017 alleging Defendants
breached the Agreement regarding the repayment of Plaintiffs
debt. Docket no. 1. Plaintiff asserts claims for (i)
violations of the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. § 1962, (ii) breach of
contract, (iii) breach of the implied covenant of good faith
and fair dealing, and (iv) violations of the Texas Fair Debt
Collection Practices Act ("TDCPA"), Tex. Fin. Code
Ann. § 392, et seq.
USAA has moved to dismiss each of Plaintiffs claims pursuant
to Fed.R.Civ.P. 12(b)(6), arguing in part, that the Agreement
was "void" because Plaintiff did not make his
payments by check or money order as stated in the Agreement.
Docket no. 8 at 1, 4-5.
Federal Rule of Civil Procedure 8(a), a complaint is
considered well pled if it contains "a short and plain
statement of the claim showing that the pleader is entitled
to relief. Fed.R.Civ.P. 8(a) is considered in conjunction
with Fed.R.Civ.P. 12(b)(6), which provides that a complaint
may be dismissed if it "fails to state a claim upon
which relief can be granted". Courts apply these rules
through the two-part process outlined by the Supreme Court in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)
and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
is appropriate under Fed. R Civ. P. 12(b)(6) if, assuming the
truth of all facts alleged in the complaint, it fails to
state a "claim to relief that is plausible on its
face". Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). In order to state a plausible claim to
relief, the complaint must include "allegations
respecting all the material elements necessary to sustain
recovery under some viable legal theory".
Twombly, 550 U.S. at 562 (quoting Car Carriers,
Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.
1984)). Those allegations may be "either direct or
inferential". Id. In applying Rule 12(b)(6),
the Court must distinguish between pleadings of fact, which
are presumed as true, and statements of legal conclusion,
which are not entitled to the presumption of truth.
Iqbal, 556 U.S. at 679. "A plaintiffs
obligation to provide the 'grounds' of his '
entitle[ment] to relief, ' requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S.
at 555 (quoting Papasan v. Allain, 478 U.S. 265
(1986)). Throughout the Rule 12(b)(6) analysis, "[t]he
complaint must be liberally construed, with all reasonable
inferences drawn in the light most favorable to the
plaintiff." Morgan v. Swanson, 659 F.3d 359,
370 n.17 (5th Cir. 2011) (en banc) (quoting Woodard v.
Andrus, 419 F.3d 348, 351 (5th Cir. 2005)). As a general
rule, the Court is limited to considering the contents of the
pleadings and the attachments thereto when analyzing a motion
to dismiss under Rule 12(b)(6). Fed.R.Civ.P. 12(b)(6);
Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763,
766 (5th Cir. 2016).
USAA moves to dismiss each of the four counts in Plaintiffs
Complaint. The Court will address each count in turn.
Choice of Law
threshold matter, the Court must decide the substantive law
that will be applied to the analysis of Plaintiff s breach of
contract and implied covenant of good faith and fair dealing
claims. The parties did not brief the
choice-of-law issue, however, USAA cited Texas substantive
law in its motion to dismiss. Plaintiff did not cite the
legal authority of any state in his response.
exercising jurisdiction supplemental to its federal question
jurisdiction (under 28 U.S.C. § 1367) applies the choice
of law rules of the forum state. Kira, Inc. v. All Star
Maint., A-03-CA-950 LY, 2006 WL 2193006, at *5 (W.D.
Tex. July 31, 2006); In re Combustion, Inc., 960
F.Supp. 1056, 1059 (W.D. La. 1997). When determining which
state's contract law to apply in the absence of a valid
choice-of-law provision, Texas courts use the "most
significant relationship" choice-of-law analysis
outlined in the Restatement (Second) of Conflict of Laws.
R.R. Mgmt. Co., L.L.C v. CFSLa. Midstream Co., 428
F.3d 214, 222 (5th Cir. 2005); Kira, Inc., 2006 WL
2193006, at *5; Nunez v. Hunter Fan Co., 920 F.Supp.
716, 718 (S.D. Tex. 1996). Factors used to determine the law
that applies include: (a) the place of contracting; (b) the
place of negotiation of the contract; (c) the place of
performance; (d) the location of the subject matter of the
contract; and (e) the domicile, residence, nationality, place
of incorporation, and place of business of the parties.
Nunez, 920 F.Supp. at 718-19 (citing Restatement
(Second) of Conflict of Laws § 188). The factors are
"to be evaluated according to their relative importance
with respect to the particular issue". Id; see also
Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.
1984) (stating that "the number of contacts with a
particular state is not determinative" and "[s]ome
contacts are more important than others").
the Agreement contains no choice-of-law provision. USAA and
Alltran have their principal places of business in Texas,
whereas Plaintiff is a California resident. Docket no. 1
¶¶ 3-5. Plaintiffs debt relief company has a New
York address (see docket no. 1-2), and Plaintiffs
trust account, from which payments were attempted, appears to
be managed from Oklahoma (see docket no. 1-2). The
record does not reflect the place of negotiation of the
Agreement or the location where Plaintiff incurred his debt.
However, the Agreement calls for performance to be made via
payments to USAA, presumably to its principal place of
business in Texas. Accordingly, after evaluating the contacts
according to their ...