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La Mojarra Loca, Inc. v. Wells Fargo Merchant Services LLC

United States District Court, D. Nevada

December 3, 2019

LA MOJARRA LOCA, INC., Plaintiffs,
v.
WELLS FARGO MERCHANT SERVICES LLC, et al., Defendants.

          ORDER

         Presently before the court is defendants First Data Merchant Services Corporation; Wells Fargo & Co.; Wells Fargo Bank, N.A.; and Wells Fargo Merchant Services LLC's motion to dismiss or alternatively transfer venue. (ECF No. 3).[1] Plaintiff La Mojarra Loca, Inc. (“plaintiff”) filed a response (ECF No. 11), to which defendants replied (ECF No. 14).

         I. Background

         The instant action arises from a contractual dispute between the parties. Plaintiff and two defendants-Wells Fargo Bank, N.A. and Wells Fargo Merchant Services LLC-entered into a standard form agreement whereby the two defendants would perform merchant services for plaintiff's restaurant. (ECF No. 1-1 at 6). The two defendants “were to provide debit and credit card transaction services to facilitate payments from [plaintiff's] customers to [plaintiff]. In turn, [d]efendants would charge [plaintiff] fees for its processing service.” Id. Plaintiff is suing defendants for breach of contract and unjust enrichment, alleging that defendants failed to transfer $620, 000 from debit and credit card transactions to its bank account. Id.

         The agreement contained two provisions relevant to the resolution of the instant motion. First, the agreement provided that, “[i]f [plaintiff] believe[d] any adjustments should be made with respect to [its] [s]ettlement [a]ccount, [it] must notify [defendants] in writing within 45 days after any debit or credit is or should have been effected.” (ECF No. 3-3 at 19). The agreement also contained a cap on defendants' liability as follows:

NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY . . . [DEFENDANTS'] CUMULATIVE LIABILITY FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY SHALL NOT EXCEED, (I) $50, 000; OR (II) THE AMOUNT OF FEES RECEIVED BY [DEFENDANTS] PURSUANT TO THE AGREEMENT FOR SERVICES PERFORMED IN THE IMMEDIATELY PRECEDING 12 MONTHS, WHICHEVER IS LESS.

Id. at 20.

         II. Legal Standard

         A court may dismiss a plaintiff's complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide “[a] short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

         “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation omitted).

         In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id.

         Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that defendant is liable for the alleged misconduct. Id. at 678.

         Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has “alleged-but it has not shown-that the pleader is entitled to relief.” Id. at 679. When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

         The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court held,

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not ...

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