United States District Court, D. Nevada
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). Plaintiff La
Mojarra Loca, Inc. (“plaintiff”) filed a response
(ECF No. 11), to which defendants replied (ECF No. 14).
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.
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.
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).
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).
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.
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.
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.
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 ...