Bluhm v. Wyndham World Wide Corporation et al, No. 3:2018cv05813 - Document 30 (W.D. Wash. 2019)
Court Description: ORDER granting 20 Defendants motion to dismiss, denying Defendants motions in the alternative and granting Plaintiff leave to amend complaint by 7/26/2019. Signed by Judge Benjamin H. Settle. (MGC)
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Bluhm v. Wyndham World Wide Corporation et al Doc. 30 1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 5 6 CASE NO. C18-5813 BHS BRANDON BLUHM, 7 Plaintiff, 8 9 v. WYNDHAM WORLD WIDE CORPORATION, et al., 10 Defendants. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE TO TRANSFER VENUE AS MOOT 11 12 This matter comes before the Court on Defendant Wyndham Worldwide 13 Corporation (“WWC”) and “Wyndham or one of its affiliates, including but not limited 14 to, Club Wyndham Access Points, Undivided Interests, Beneficial Interests, Credits 15 and/or the Timeshare Interests (The “Timeshare Interests”) Extra Holidays, FVOA, 16 WWO[‘s]” (collectively “Defendants”) motion to dismiss, or for summary judgment, or 17 in the alternative to transfer venue. Dkt. 20. The Court has considered the pleadings filed 18 in support of and in opposition to the motion and the remainder of the file and hereby 19 grants the motion for the reasons stated herein. 20 I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND 21 Plaintiff Brandon Bluhm (“Bluhm”) is an individual who owns timeshares and 22 earns income from renting his timeshare interests to others. Dkt. 19, (“First Amended ORDER - 1 Dockets.Justia.com 1 Complaint”), 4. Bluhm appears to have owned approximately 68 timeshare contracts 2 affiliated with Defendants. See id. 6. Bluhm used a website affiliated with Defendants 3 to rent out his timeshare interests for income. Id. 4. In May 2017, Bluhm’s ability to 4 manage his timeshare interests through this website was impeded. Id. Bluhm alleges that 5 in July 2017, a representative affiliated with Defendants told him that if he sold back 64 6 of his timeshare contracts, his access to the website would be restored. Id. 6–7. 7 Subsequently, Bluhm sold 64 of his timeshare contracts back to Defendants or an 8 affiliated entity. Id. 7. However, Bluhm was unable to access the website until October 9 2017. Id. 11. Upon regaining access, Bluhm’s ability to use the website was limited by 10 website errors. Id. 11 Bluhm filed suit in this Court on October 8, 2018. Dkt. 1. On January 24, 2019, 12 Defendants moved for transfer of venue, or in the alternative for dismissal pursuant to 13 Fed. R. Civ. P. 12(b)(6), 12(b)(7), or summary judgment pursuant to Fed. R. Civ. P. 56. 14 Dkt. 11. On April 9, 2019, the Court granted Defendants’ motion to dismiss without 15 prejudice on the basis of failure to establish jurisdiction and granted Bluhm leave to 16 amend his complaint. Dkt. 18. 17 On April 19, 2019, Bluhm filed his First Amended Complaint. Dkt. 19. On May 3, 18 2019, Defendants filed a second motion to dismiss, or in the alternative for summary 19 judgment, or in the alternative to transfer venue. Dkt. 20. On May 13, 2019, the Court 20 entered the parties’ stipulated order to permit substitution of counsel for Bluhm. Dkt. 22. 21 On May 28, 2019, Bluhm responded to Defendants’ motion. Dkt. 23. On June 7, 2019, 22 Defendants replied. Dkt. 28. ORDER - 2 1 2 II. DISCUSSION The Court’s previous order found Bluhm had failed to allege sufficient facts to 3 establish personal jurisdiction over the named Defendants. Dkt. 18. The Court dismissed 4 Bluhm’s claims with leave to amend. Id. Bluhm’s First Amended Complaint does little to 5 cure the defects in his jurisdictional allegations. See Dkt. 19, 2 (reading in part 6 “[Plaintiff] will show that the contracts were executed by [P]laintiff in the state of 7 Washington sent to [P]laintiff by [D]efendants”). 8 9 Defendants argue that the Court’s artciulation of the original complaint’s deficiencies applies to the First Amended Complaint as well—both Bluhm’s original 10 complaint and his First Amended Complaint allege breach of contract and 11 misrepresentation claims but fails to plead facts tending to show “how or where 12 [contract] negotiations were initiated, conducted, or completed, or where performance 13 was contemplated such that the Court can analyze whether sufficient contacts occurred 14 such that its exercise of jurisdiction would be consistent with due process.” Dkt. 20 at 11 15 (citing Dkt. 18 at 6). 16 The First Amended Complaint includes three exhibits which it identifies as 17 “contracts that were entered into [in] the [S]tate of Washington from [sic] the 18 defendants.” Dkt. 19, 2; Dkt 19-1. The exhibits appear to contain three final pages of 19 contracts notarized in Washington and signed by Bluhm. Id. However, the First Amended 20 Complaint again fails to allege basic facts such as the circumstances of each contract’s 21 negotiation, the location of performance contemplated, or the identity of the counterparty. 22 See Dkt. 18 at 6. To determine whether the Court has jurisdiction over the various ORDER - 3 1 defendants, the Court must be able to evaluate each defendant’s minimum contacts with 2 the forum. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). 3 Bluhm’s response to WWC’s motion, filed by new counsel, contains a 4 substantially more detailed factual history of the actions in controversy than the First 5 Amended Complaint, Dkt. 23, as well as a seventeen-page declaration from Bluhm with 6 nearly ninety pages of supporting exhibits, Dkt. 24; Dkts. 24-1–24-16. In reply, 7 Defendants highlight the fact that while Bluhm’s First Amended Complaint names as 8 defendants WWC and “Wyndham or one of its affiliates, including but not limited to, 9 Club Wyndham Access Points, Undivided Interests, Benefincal [sic] Interests, Credits 10 and/or the Timeshare Interests, Extra Holidays, FVOA, [and] WWO,” in response, 11 Bluhm makes jurisdictional arguments regarding WWC and two entities not named in the 12 First Amended Complaint which WWC identifies as Wyndham Vacation Resorts 13 (“WVR”) and Wyndham Vacation Ownership (“WVO”). Dkt. 28 at 2 (citing Dkt. 23 at 14 14). 1 Defendants argue that the conflict between the First Amended Complaint and 15 Bluhm’s response deprives Defendants of fair notice. Dkt. 28 at 2. WWC further argues 16 that “[n]owhere in the Amended Complaint does Plaintiff explain what WWC, WVR or 17 WVO allegedly did,” which “make[s] it virtually impossible for Defendants to defend 18 themselves . . . .” Id. at 3. The portion of Bluhm’s opposition Defendants cite includes a 19 footnote informing the Court that “Wyndham’s convoluted corporate structure makes it 20 difficult to know precisely which entity is to blame for its misconduct, and Plaintiff 21 1 22 Bluhm appears to refer to WVR as Wyndham Resorts and to WVO as Wyndham Ownership. See Dkt. 23 at 14. ORDER - 4 1 therefore intends to name ‘Wyndham Doe’ defendants along with [WWC], Wyndham 2 Resorts, and Wyndham Ownership if leave to amend is granted. Fairshare Vacation 3 Owner’s Association (“FVOA”) may also be named later, but discovery is needed.” Dkt. 4 23 at 14 n.3. 5 “The trial court’s discretion to deny [leave to amend] is particularly broad where, 6 as here, a plaintiff previously has been granted leave to amend.” Griggs v. Pace Am. 7 Grp., Inc., 170 F.3d 877, 879 (9th Cir. 1999). Bluhm’s new counsel appears to admit that 8 the First Amended complaint failed to correct the deficiencies the Court identified. See 9 Dkt. 23 (“Even if not well stated in the existing pleadings, Plaintiff can make the required 10 showing of jurisdiction. The Court should deny Wyndham’s motion, or perhaps more 11 appropriately, grant leave for Plaintiff to file an amended complaint.”). Bluhm’s 12 opposition argues that the Court can establish jurisdiction over Wyndham Resorts and 13 Wyndham Ownership though these entities are not named in the complaint, as well as 14 over WWC. Dkt. 23 at 14. Finding that Bluhm’s new counsel recognizes the likelihood 15 that the First Amended Complaint requires amendment, that Bluhm’s opposition focuses 16 at least in part on defendants which are not currently named, and that Defendants are 17 correct that the First Amended complaint does not cure the identified jurisdictional 18 deficiencies regarding named Defendants, the Court grants the motion to dismiss. 19 WWC argues that the Court should deny Bluhm’s request for leave to amend 20 because he has failed to attach a copy of the proposed amended pleading as an exhibit to 21 his opposition. Dkt. 28 at 8 (citing Local Rules W.D. Wash. LCR 15). However, this rule 22 applies to a motion or stipulation to amend a complaint, not to a brief in opposition to a ORDER - 5 1 motion to dismiss. While the Court would otherwise be inclined to dismiss Bluhm’s First 2 Amended Complaint with prejudice for failure to correct the identified deficiencies, it 3 appears possible that with the aid of Bluhm’s new counsel his claims may be cured by 4 amendment. Therefore, the Court will dismiss Bluhm’s First Amended Complaint 5 without prejudice and with leave to amend. Consequently, WWC’s motions in the 6 alternative for summary judgment or transfer are moot and are denied without prejudice. 7 Dkt. 20. Bluhm is advised that the Court will look skeptically upon further requests for 8 leave to amend should the Second Amended Complaint fail to sufficiently allege a basis 9 for jurisdiction over the named defendants or fail to state a claim for which relief may be 10 granted. 11 12 III. ORDER Therefore, it is hereby ORDERED that Defendants’ motion to dismiss, Dkt. 20, is 13 GRANTED, Bluhm’s claims are DISMISSED without prejudice and with leave to 14 amend, and Defendants’ motions in the alternative for summary judgment or transfer are 15 DENIED as moot and without prejudice, Dkt. 20. Bluhm may file an amended 16 complaint no later than July 26, 2019. 17 Dated this 12th day of July, 2019. A 18 19 BENJAMIN H. SETTLE United States District Judge 20 21 22 ORDER - 6
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