IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROME DIVISION ) ) ) ) ) ) ) ) ) ) ) )

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1 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 1 of 26 JOSHUA PARNELL, Plaintiff, v. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROME DIVISION WESTERN SKY FINANCIAL, LLC, d/b/a Western Sky Funding, Western Sky, WesternSky.com; MARTIN A. ("Butch") WEBB; & CASHCALL, INC., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action File No.: 4:14-cv HLM MEMORANDUM OF LAW IN SUPPORT OF CASHCALL, INC. S RENEWED MOTION TO DISMISS BASED ON FORUM NON CONVENIENS 1 The doctrine of forum non conveniens requires that all claims by Plaintiff Joshua Parnell against CashCall, Inc. ( CashCall ) be adjudicated by the Cheyenne 1 CashCall is contemporaneously filing a renewed motion to compel arbitration. CashCall has filed renewed motions because the filing of Plaintiff s Amended Complaint has mooted CashCall s previous motions to dismiss and compel. See Pintando v. Miami-Dade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007); Jones Creek Investors, LLC v. Columbia Cnty., Ga., No. CV , 2012 WL , at *3 n.5 (S.D. Ga. Mar. 1, 2012). Because a forum non conveniens motion is a threshold issue, the Court need not consider the renewed motion to compel if the Court dismisses the case. See Sinochem Int l Co. Ltd. v. Malaysia Int l Shipping Corp., 549 U.S. 422, 432 (2007). CashCall does not waive, and reserves, its right to compel Plaintiff to arbitrate all issues, including those raised herein. CashCall also reserves the right to challenge Plaintiff s claims in separate motions to dismiss addressing merits issues, if necessary, at the appropriate time.

2 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 2 of 26 River Sioux Tribal Court. Plaintiff seeks to challenge his Loan Agreement under Georgia s Payday Lending Act ( GPLA ). But the Loan Agreement provides that it is subject solely to the exclusive laws and jurisdiction of the Cheyenne River Sioux Tribe, Cheyenne River Indian Reservation and in the Agreement, Plaintiff consent[ed] to the sole subject matter and personal jurisdiction of the Cheyenne River Sioux Tribal Court for all in-court adjudication relating to the Loan Agreement. (Dkt. 3-2 at 2.) A federal district court in North Carolina recently considered and rejected a challenge to the very same forum-selection clause at issue in this case. See See Spuller v. CashCall, Inc., No. 5:13-CV-806-D, slip op. at 1-2 (E.D.N.C. Mar. 5, 2014) (attached as Exhibit 1). This Court should reach the same conclusion and dismiss the current action based on the doctrine of forum non conveniens. 2 I. RELEVANT FACTUAL BACKGROUND On or about June 5, 2012, Plaintiff entered into the Loan Agreement with Western Sky Financial, LLC ( Western Sky ). (Dkt. 3-2.) Following his execution of the Loan Agreement, Plaintiff was notified that CashCall would service his loan. 2 This matter s other two Defendants, Western Sky and Martin A. Webb, have not been served with the Complaint or Amended Complaint, and in any event, are not subject to personal jurisdiction in this Court. Consequently, the current motion is not filed on their behalf and should not be construed as an appearance in this litigation by either

3 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 3 of 26 (Am. Compl. at 87.) When Plaintiff entered into the Loan Agreement with Western Sky, he acknowledged that his Loan Agreement is subject solely to the exclusive laws and jurisdiction of the Cheyenne River Sioux Tribe, Cheyenne River Indian Reservation. (Dkt. 3-2 at 2 (emphasis in original).) Plaintiff further agreed that: [b]y executing this Loan Agreement, [he], the borrower, hereby acknowledge[d] and consent[ed] to be bound to the terms of this Loan Agreement, consent[ed] to the sole subject matter and personal jurisdiction of the Cheyenne River Sioux Tribal Court, and that no other state or federal law or regulation shall apply to this Loan Agreement, its enforcement or interpretation. (Id.) Moreover, the Loan Agreement contains an additional paragraph discussing the law governing the parties agreement: This Agreement is governed by the Indian Commerce Clause of the Constitution of the United States of America and the laws of the Cheyenne River Sioux Tribe.... Neither this Agreement nor Lender is subject to the laws of any state of the United States of America. By executing this Agreement, you hereby expressly agree that this Agreement is executed and performed solely within the exterior boundaries of the Cheyenne River Indian Reservation, a sovereign Native America Tribal Nation. You also expressly agree that this Agreement shall be subject to and construed in accordance only with the provisions of the laws of the Cheyenne River Sioux Tribe, and that no United States state or federal law applies to this Agreement. You agree that by entering into this Agreement you are voluntarily availing yourself of the laws of the Cheyenne River Sioux Tribe, a sovereign Native American Tribal Nation, and that your execution of this Agreement is made as if you were physically present within the exterior boundaries of the Cheyenne River Indian Reservation, a sovereign Native American Tribal Nation

4 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 4 of 26 (Id. at 4; see also Am. Compl. at 72, 124.) By agreeing to these provisions, including the Loan Agreement s forumselection clause, Plaintiff waived his right to avail himself of the courts of the State of Georgia or the federal district courts sitting within the State of Georgia. Indeed, Plaintiff admits as much: Defendants Loan Agreement contains forum-selection and choice of law clauses providing that the laws and jurisdiction of the Cheyenne River Sioux Tribe apply to any dispute arising out of the agreement. (Am. Compl. at 124.) Notwithstanding this forum-selection clause, Plaintiff filed this action in Georgia state court. Defendants removed the action to this Court on February 12, 2014, under the Class Action Fairness Act. (Dkt. 1.) 3 On February 19, 2014, CashCall filed a Motion to Dismiss Based on Forum Non Conveniens (Dkt. 2) and a Motion to Compel Arbitration (Dkt. 3). On March 4, 2014, Plaintiff filed the Amended Complaint, along with oppositions to CashCall s two prior motions. (Dkt ) Although the filing of the Amended Complaint mooted CashCall s previous motions to dismiss and compel, (see note 1 above), Plaintiff s new pleading does not overcome the deficiencies that warranted those motions in the first instance. 3 Plaintiff has not moved to remand this case, and the deadline for doing so has passed. 28 U.S.C. 1447(c)

5 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 5 of 26 Accordingly, CashCall now brings this renewed dismissal motion, along with its companion renewed motion to compel arbitration. II. ARGUMENT AND CITATIONS OF AUTHORITY CashCall submits that, under the parties forum-selection clause, only the Cheyenne River Sioux Tribal Court has authority to decide any question in this case, including CashCall s contemporaneously filed motion to compel arbitration. Accordingly, this action should be dismissed. The Supreme Court recently held that the appropriate way to enforce a forumselection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens. Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for W. Dist. of Tex., 134 S. Ct. 568, 580 (2013). 4 The doctrine allows a court to dismiss a suit on the grounds of administrative efficiency and convenience prior to addressing any merits issues. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947); Sinochem Int l Co. Ltd. v. Malaysia Int l Shipping Corp., 549 U.S. 422, 432 (2007). A district court... may dispose of an action by a forum non conveniens dismissal, bypassing questions of 4 Prior to Atlantic Marine, the Eleventh Circuit held that in the context of a forum-selection clause which mandated a foreign venue,... a motion pursuant to Rule 12(b)(3) is the proper avenue for relief. Slater v. Energy Servs. Grp. Int l, Inc., 634 F.3d 1326, 1332 (11th Cir. 2011). Atlantic Marine overruled that holding. 134 S. Ct. at

6 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 6 of 26 subject-matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warrant. Sinochem, 549 U.S. at 432. This Court must enforce the forum-selection clause here for three principal reasons. First, the only ground Plaintiff invokes in his Amended Complaint to avoid the forum-selection clause is a provision of the GPLA, O.C.G.A (c)(1), (Am. Compl. at 125) that is inapplicable because federal law governs the enforceability of a forum-selection clause in federal court. Second, even if state law applied, the GPLA by its own clear terms does not apply to loans that were made (as here) in interstate commerce, and even if it did, the forum-selection clause complies with the statute. Third, the forum-selection clause is valid and enforceable under federal law. See Spuller, No. 5:13-CV-806-D, slip op. at 1-2. A. Federal, Not Georgia, Law Governs The Enforceability Of The Forum-Selection Clause. Although Plaintiff contends that the forum-selection clause is unenforceable under Georgia law (Am. Compl. at 125), [c]onsideration of whether to enforce a forum-selection clause in a diversity jurisdiction case is governed by federal law. P&S Bus. Machs., Inc. v. Canon USA, Inc., 331 F.3d 804, 807 (11th Cir. 2003). [F]orum selection clauses present procedural questions to be resolved by federal law independent of forum state policy. Stewart Org., Inc. v. Ricoh Corp., 810 F.2d 1066, 1067 (11th Cir. 1987) (en banc), aff d on other grounds, 487 U.S. 22 (1988). The en - 6 -

7 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 7 of 26 banc Eleventh Circuit has therefore held that if state law would void a forum-selection clause, but federal law would not, state law must give way to federal law and the court must enforce the forum-selection clause. Id. at 1067, Under that clear case law, it does not matter at all whether the forum-selection clause violates O.C.G.A (c)(1) or any other state public policy. After a proper and timely removal, this case is in federal court, and federal courts follow federal law when considering whether to enforce a forum-selection clause. That rule applies even when the forum state considers such clauses to be violative of state public policy because a freely negotiated contractual choice of forum clause is enforceable in diversity actions in federal court. Stewart Org., Inc., 810 F.2d at Consequently, Plaintiff s attempt to avoid his Loan Agreement s forumselection clause by invoking state law is entirely misplaced, and on that basis alone, CashCall s dismissal motion should be granted. B. The GPLA Does Not Apply To Plaintiff s Loan Agreement And, Even If It Did, The Forum-Selection Clause Does Not Violate The GPLA. As discussed in CashCall s contemporaneously filed motion to compel, even if state law was in play, the GPLA by its own terms does not apply to the parties Loan Agreement. See Memorandum of Law in Support of CashCall, Inc. s Renewed Motion to Compel Arbitration and Dismiss or Stay Action, at The introduction - 7 -

8 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 8 of 26 to the GPLA states that its provisions do[] not encompass loans that involve interstate commerce. O.C.G.A (d) (emphasis added). But Plaintiff concedes, for example, that his payments have crossed state lines, and the payments he seeks now to avoid would also cross state lines. See United States v. Williams, 121 F.3d 615, 619 (11th Cir. 1997) ( Appellant s obligation to pay child support... involves interstate commerce because Appellant s obligation to pay money crossed state lines. ). (Am. Compl. at 7, 8, 22, 79.) Because Plaintiff s loan involved interstate commerce, the GPLA including its limitation on forum-selection clauses does not apply here. Further, even if the GPLA applies, the statute permits the parties to designate where the loan office is located as a forum for dispute resolution. O.C.G.A (c)(1). As Plaintiff has acknowledged, Western Sky s place of business is located on the Cheyenne River Sioux Reservation, which is where the Cheyenne River Sioux Tribal Court is located. (Id. at 8.) For these additional reasons, even if Plaintiff is correct to rely upon Georgia law, the particular (and only) statute he invokes does not and cannot abrogate the Loan Agreement s forum-selection clause

9 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 9 of 26 C. The Forum-Selection Clause Must Be Enforced Under Clear Federal Law. The Eleventh Circuit has made clear that [f]orum-selection clauses are presumptively valid and enforceable, Krenkel v. Kerzner Int l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009), and that the burden is on the party opposing the enforcement of the forum selection clause to show that it should not be enforced, P&S Bus. Machs., 331 F.3d at 807. Enforcing the parties agreed-upon forum protects their legitimate expectations and furthers vital interests of the justice system, and a valid forum-selection clause should be given controlling weight in all but the most exceptional cases. Atl. Marine, 134 S. Ct. at 581 (quotations and alteration omitted). In Atlantic Marine, the Supreme Court recently made clear that federal courts must enforce forum-selection clauses strictly, and significantly curbed the grounds that federal courts may rely upon to void them. See id. Specifically, the Supreme Court held that where the parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation. Id. at 582. As a consequence, a district court may consider arguments about public-interest factors only, and thus should not consider arguments about the parties private interests

10 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 10 of 26 Id. 5 Atlantic Marine, in holding with crystal clarity that convenience to a particular litigant or other private interests cannot void a forum-selection clause, compels this Court to enforce the Loan Agreement s forum-selection clause. 1. The Forum-Selection Clause is Valid Under Federal Law. Plaintiff has admitted, as he must, that Atlantic Marine severely altered the prior Eleventh Circuit standard to determine whether to enforce a forum-selection clause, and that Atlantic Marine provides that the Court can no longer consider private interest factors. (Dkt. 14 at 5, 7.) Yet Plaintiff is undeterred, arguing that this Court may, even post-atlantic Marine, hold a forum-selection clause invalid because of the inconvenience and unfairness of the chosen forum. (Id. at 7.) This contention collides head-on with Atlantic Marine, including its ruling that when entering into a forum-selection clause the parties waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses. 134 S. Ct. at Although the body of the Supreme Court s opinion in Atlantic Marine made these statements in the context of a court evaluating a defendant s 1404(a) motion to transfer based on a forum-selection clause, 134 S. Ct. at 582, the Court made clear that the same standards should apply to motions to dismiss for forum non conveniens in cases involving valid forum-selection clauses pointing to state or foreign forums, id. at 583 n

11 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 11 of 26 Plaintiff s lone rationale in support of continuing to press private interest arguments in the face of a decision forbidding private interest arguments is that Atlantic Marine extends only to valid forum-selection clause[s], 134 S. Ct. at 581 (emphasis added). (Dkt. 14 at 7.) Seizing on that one word valid Plaintiff argues that his forum-selection clause is invalid and thus beyond Atlantic Marine s requirement that courts enforce forum-selection clauses. Yet Plaintiff argues invalidity based on the very same private interest factors that Plaintiff concedes were rendered irrelevant by Atlantic Marine. Plaintiff s circular reading of Atantic Marine is untenable because it necessarily makes meaningless the decision s requirement that courts consider only publicinterest factors when evaluating forum-selection clauses. Under Plaintiff s approach, every party dissatisfied with its forum-selection clause in Atlantic Marine s aftermath need only raise the exact private interest grievances it outlaws in a bid to show invalidity and evade the case s reach. Simply put, Plaintiff offers no evidence that the Supreme Court intended to pack into the word valid a self-defeating exception to the case s main holding, much less an explanation for why the Supreme Court would issue such an illogical decision (and a unanimous one at that). In expressing that its holding applies to valid forum-selection clauses, as distinct from invalid forum-selection clauses, the Supreme Court surely meant to do

12 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 12 of 26 no more than distinguish between those clauses that constitute a valid agreement under normal contract law principles (e.g., offer, acceptance, and consideration), and those that do not. As the Supreme Court explained in First Options of Chicago, Inc. v. Kaplan, courts should apply ordinary state-law principles that govern the formation of contracts... to see whether the parties objectively revealed an intent to submit the disputed claim to the designated forum. 514 U.S. 938, 944 (1995) (emphasis added). This analysis would also consider whether the defendant obtained consent to the forum-selection clause by fraud, as that would render the forum-selection clause invalid under contract law principles. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991). There is no serious question that Plaintiff s Loan Agreement, including the forum-selection clause, is valid under that standard. Plaintiff admits that he signed the Loan Agreement containing the forum-selection clause, and that Western Sky lent him money in return for his promise to repay the loan, thereby establishing an offer, acceptance, and consideration. See, e,g., Hampton Island Club, LLC v. B2 Creative, Inc., 300 Ga. App. 258, 260, 685 S.E.2d 751, 752 (2009). 6 6 The Loan Agreement contains a choice-of-law clause designating CRST law, and the Eleventh Circuit has stated that the relevant law governing the validity of a forum-selection clause is law of the forum designated by the choice of law provision. Scott v. Prudential Secs., Inc., 141 F.3d 1007, (11th Cir. 1998)

13 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 13 of 26 Similarly, there is no plausible argument that Plaintiff was defrauded into accepting the forum-selection clause. The very first sentence of the Loan Agreement states in plain English that it is subject solely to the exclusive laws and jurisdiction of the Cheyenne River Sioux Tribe, Cheyenne River Indian Reservation and that Plaintiff consent[ed] to the sole subject matter and personal jurisdiction of the Cheyenne River Sioux Tribal Court for all in-court adjudication relating to the Loan Agreement. (Dkt. 3-2 at 2.) Courts consistently enforce forum-selection clauses that were disclosed to the consumer in such clear, simple language. See, e.g., Liles v. Ginn-La W. End, Ltd., 631 F.3d 1242, 1247 (11th Cir. 2011). A federal district court interpreting this same agreement recently reached that very conclusion, dismissing a case against CashCall because the plaintiff had not plausibly alleged that the forumselection clause was obtained by fraud or overreaching. Spuller, No. 5:13-CV-806- D, slip op. at 1 (E.D.N.C.). Plaintiff has argued that facts recited in the Loan Agreement were fraudulent. (Dkt. 14 at 8.) At the outset, most of the facts Plaintiff describes have no basis in the actual Loan Agreement, the tell-tale sign being that Plaintiff has cited no The CRST applies general common law contract principles embodied in the Restatement (Second) of Contracts. See White Wolf v. Myers, 34 Indian L. Rep. 6102, (CRST Ct. App. 2007) (attached as Exhibit 2); Bank of Hoven v. Long Family Land & Cattle Co., 32 Indian L. Rep. 6001, (CRST Ct. App. 2004) (attached as Exhibit 3)

14 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 14 of 26 provisions of the Loan Agreement when reciting these facts. (Id.) For example, Plaintiff says that the Loan Agreement falsely states that Plaintiff while sitting in his home in Georgia was entering into the boundaries of the Cheyenne River Sioux Tribe to apply for the loan. (Id.) The Loan Agreement does not say that, but instead states that Plaintiff agree[d] that [he has] executed the Loan Agreement as if [he was] physically present on the Reservation. (Dkt. 3-2 at 2, 4 (emphasis added).) That is consistent with the general rule (described below) that a Loan Agreement is deemed formed where the last act necessary to effectuate the agreement occurred. The Loan Agreement thus simply acknowledges (correctly) that the Loan Agreement formed on the Reservation, notwithstanding Plaintiff s physical location when he signed the agreement. See p. 17 below; (Lawrence Aff. 3, attached as Exhibit 4). 7 7 Plaintiff also claims that the Loan Agreement falsely states that Plaintiff received the money from Western Sky (a company formed under the laws of South Dakota, not the Cheyenne River Sioux Tribe) while Plaintiff was within the boundaries of the tribal lands; that Plaintiff s bank which is located in Georgia was receiving the electronically transferred funds on tribal lands; that CashCall (a company formed under the laws of California, not the Cheyenne River Sioux Tribe) was accepting payments from Plaintiff on tribal lands even though Plaintiff was in Georgia and CashCall was in California. (Dkt. 14 at 8-9.) It is unclear where Plaintiff believes the Loan Agreement states any of those facts, falsely or otherwise

15 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 15 of The Public-Interest Factors Require Enforcing The Forum- Selection Clause. Because Plaintiff s forum-selection clause is valid, under Atlantic Marine this court may consider only public-interest factors in determining whether to enforce the forum-selection clause. Public-interest factors will rarely defeat a forum non conveniens motion. Atl. Marine, 134 S. Ct. at 582. The factors that the court may consider include (1) the interest in having the trial of a diversity case in a forum that is at home with the law ; (2) the local interest in having localized controversies decided at home ; and (3) the administrative difficulties posed by each forum. Id. at 581 n.6 (quotations omitted); see also Membreno v. Costa Crociere S.p.A., 425 F.3d 932, (11th Cir. 2005). Here, the public-interest factors weigh overwhelmingly in favor of enforcing the parties forum-selection clause. a. The Need to Apply CRST Law Strongly Favors Dismissal. The Eleventh Circuit has held that the need to apply foreign law is a publicinterest factor that mitigates strongly in favor of dismissal. Membreno, 425 F.3d at ; see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 260 n.29 (1981) ( Many forum non conveniens decisions have held that the need to apply foreign law favors dismissal. ). There is no doubt that foreign law would apply to Plaintiff s action. CashCall and Plaintiff contractually agreed that the Loan Agreement is subject solely

16 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 16 of 26 to the exclusive laws and jurisdiction of the Cheyenne River Sioux Tribe, Cheyenne River Indian Reservation. (Dkt. 3-2 at 2; see also Am. Compl. at 72, 124.) The parties also agreed that no other state or federal law or regulation shall apply to this Loan Agreement, its enforcement or interpretation. (Dkt. 3-2 at 2.) These contractual terms establish conclusively that Plaintiff s claims arising from the Loan Agreement would have to be decided exclusively by applying the law of the CRST. This simple fact mitigates strongly in favor of dismissal of Plaintiff s action so that he can then bring it in the Cheyenne River Sioux Tribal Court. Membreno, 425 F.3d at 938; see also Piper Aircraft, 454 U.S. at 260 n.29. b. The CRST s Interest in This Case Is Significant. The second public-interest factor balances the sovereigns interests in deciding the dispute. Membreno, 425 F.3d at 937 (quotations omitted); see also Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 953 (11th Cir. 1997). Preference is given to the forum with the strongest ties to the underlying controversy. See BCCI Holdings, 119 F.3d at 953; see also Atl. Marine, 134 S. Ct. at 581 n.6. The CRST s superior interest in this case is highlighted by the language of the Loan Agreement, as well as the Tribe s and its members sovereign right to make their own laws and be ruled by them. McClanahan v. State Tax Comm n of Ariz., 411 U.S. 164, 172 (1973) (quotations omitted); see also Montana v. United States,

17 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 17 of 26 U.S. 544, 565 (1981) ( To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-indians on their reservations.... A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. ) (emphasis added). The Loan Agreement makes clear that the parties entered into their contractual relationship on the Cheyenne River Indian Reservation. The parties agreed that execution and performance of the Loan Agreement were solely within the exterior boundaries of the Cheyenne River Indian Reservation, and Plaintiff agreed that his execution of this Agreement [was] made as if [he was] physically present within the exterior boundaries of the Cheyenne River Indian Reservation. (Dkt. 3-2 at 4; see also Am. Compl. at 82.) Even though Plaintiff did not travel to the Reservation, this is irrelevant. (Dkt. 14 at 10.) The final step of the transaction (Western Sky s approval of Plaintiff s loan application) occurred on the Reservation. Under Georgia s lex loci contractus rules, [i]n order to determine where a contract was made, the court must determine where the last act essential to the completion of the contract was done. Gen. Tel. Co. of Se. v. Trimm, 252 Ga. 95, 95, 311 S.E.2d 460, 461 (1984). Here, the Loan Agreement

18 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 18 of 26 was formed on the Reservation when Western Sky gave final approval to Plaintiff s application and agreed to fund his loan. (Exhibit 4, Lawrence Aff. 3, 5.) Moreover, as discussed above, the parties agreed that the Loan Agreement is subject solely to the exclusive laws and jurisdiction of the CRST, and that the sole subject matter and personal jurisdiction of the Cheyenne River Sioux Tribal Court would apply to any dispute involving the Loan Agreement. (Dkt. 3-2 at 2; Am. Compl. at 124.) By comparison, Georgia s interests in this case are minimal. The parties agreed that Western Sky did not have a presence in South Dakota or any other states of the United States and that [n]either this Agreement nor Lender is subject to the laws of any state of the United States of America. (Dkt. 3-2 at 4.) There are no references to Georgia in any of the choice-of-law, forum-selection, personal jurisdiction, or location-of-contract provisions. It is irrelevant that Plaintiff chose to file suit in Georgia courts with the hopes of applying Georgia law. As Atlantic Marine squarely held, the plaintiff s choice of forum merits no weight, and indeed, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted. Atl. Marine, 134 S. Ct. at 581. The fact remains that the only connection whatsoever to Georgia is that Plaintiff happened to reside

19 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 19 of 26 here when he applied for a loan. But a Georgia resident can waive his right to litigate in Georgia, as Plaintiff did here. See, e.g., Houseboat Store, LLC v. Chris-Craft Corp., 302 Ga. App. 795, 798, 692 S.E.2d 61, 64 (2010). Even putting aside the specific terms of the Loan Agreement, courts have repeatedly affirmed the tenet that tribes have a sovereign interest in ensuring that they have authority over acts occurring on their land. It is common ground that tribal courts have exclusive jurisdiction over suits against tribal members on claims arising on the reservation. Philip Morris USA, Inc. v. King Mountain Tobacco Co., 569 F.3d 932, 940 (9th Cir. 2009). As the Supreme Court said in Williams v. Lee, 358 U.S. 217, 223 (1959), [i]t is immaterial that [Plaintiff] is not an Indian[;] [h]e was on the Reservation and the transaction with an Indian took place there. See also Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987) ( Civil jurisdiction... presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute. ). Plaintiff does not dispute that Western Sky is headquartered on CRST land and is owned by a CRST-member, giving the CRST a significant interest in adjudicating the legality of Western Sky loans. Recognizing tribal sovereign interests over activities occurring on their own territory promotes respect for comity and deference to the tribal court as the appropriate court of first impression to determine its jurisdiction. Grand Canyon

20 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 20 of 26 Skywalk Dev., LLC v. Sa Nyu Wa, Inc., 715 F.3d 1196, 1200 (9th Cir. 2013). Indeed, tribal courts routinely exercise broad criminal and civil jurisdiction which covers suits by outsiders against Indian defendants. Williams, 358 U.S. at 222. Given the contracting parties intent, as well as the CRST s sovereign interests, the CRST has a significantly greater interest in this case than does the state of Georgia. Accordingly, this public-interest factor strongly supports dismissal. c. The Administrative Burdens Favor Dismissal. A consideration of the administrative costs of keeping this suit in the current forum also militates in favor of dismissal. The Court looks to the commitment of judicial time and resources that would inevitably be required if the case were to be tried in the current forum, Piper Aircraft, 454 U.S. at 261, as well as the administrative difficulties flowing from court congestion, Atl. Marine, 134 S. Ct. at 581 n.6 (quotations omitted). Importantly, this factor does not consider the burden on any party including Plaintiff in litigating in the pre-selected forum, as Atlantic Marine squarely held that factor is irrelevant. Id. at 581. The only question here is whether administrative burdens on the selected court militate against enforcing the forum-selection clause. They plainly do not here. As discussed above, the mere fact that this Court would have to interpret and apply the law of the CRST is a significant burden on judicial resources that strongly

21 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 21 of 26 favors dismissing the case. Likewise, there is little reason for this Court (with its excessive caseload) to maintain jurisdiction over this action while a court with considerable expertise in tribal law is able to hear the case. The Cheyenne River Sioux Tribal Court easily can construe a contract made on the Cheyenne River Indian Reservation and apply the law of the CRST. This last public-interest factor weighs heavily in favor of dismissal. D. Only The CRST Court Can Consider In The First Instance Whether It Has Jurisdiction. Plaintiff has argued that the forum-selection clause is invalid because the CRST courts do not have jurisdiction over a non-indian like Plaintiff. (Dkt. 14 at ) But under clear Supreme Court precedent, and what is known as the tribal exhaustion doctrine, federal courts must defer to tribal courts to address the scope of tribal court jurisdiction whenever a party raises a colorable claim that the tribal courts have jurisdiction. Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th Cir. 2008); see also LaPlante, 480 U.S. at 18-19; Nat l Farmers Union Ins. Companies v. Crow Tribe of Indians, 471 U.S. 845, 856 (1985). CRST jurisdiction is more than colorable here. Tribal jurisdiction reaches nontribal members such as Plaintiff when a dispute arises from (1) a consensual commercial relationship with (2) a tribal member and (3) the commercial conduct underlying the dispute occurred on the Reservation. See Montana, 450 U.S. at

22 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 22 of 26 ( A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. ); see also id. at 566 (noting that agreements or dealings could constitute a consensual relationship sufficient to subject [non-indians] to tribal civil jurisdiction ). The first Montana element is satisfied because, as discussed above, there is no doubt that Plaintiff consensually entered into the Loan Agreement, free of any fraud or overreaching. The second element is satisfied because Western Sky s conduct is equivalent to that of a tribal member. Mr. Webb, the sole member of Western Sky, is an enrolled member of the CRST, a federally-recognized Indian tribe, and by extension, Western Sky possesses the rights and protections of a tribal member. Courts have consistently recognized that, as a result of sharing their owners identities, Indian-owned companies also enjoy the privileges of tribal membership. See Pourier v. S.D. Dep t of Revenue, 658 N.W.2d 395, (S.D. 2003), aff d in part and vacated in part on other grounds, 674 N.W.2d 314 (2004); Confederated Tribes of Chehalis Reservation v. Thurston Cnty. Bd. of Equalization, 724 F.3d 1153, 1157 (9th Cir. 2013). And the third element is satisfied because, as discussed above, Georgia s lex loci contractus rules dictate that the Loan Agreement was formed on the CRST

23 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 23 of 26 Reservation (as Plaintiff himself agreed to when he signed the Loan Agreement, see Dkt. 3-2 at 2). With all three Montana elements satisfied, there is no doubt that a colorable claim of tribal court jurisdiction has been raised, supplying yet another reason to dismiss Plaintiff s suit. See, e.g., DISH Network Serv. L.L.C. v. Laducer, 725 F.3d 877, (8th Cir. 2013). III. CONCLUSION The parties forum-selection clause is clear: the Loan Agreement is subject solely to the exclusive laws and jurisdiction of the Cheyenne River Sioux Tribe, Cheyenne River Indian Reservation. (Dkt. 3-2 at 2.) Plaintiff cannot meet his burden of showing that this is one of the most exceptional cases where the parties forum-selection clause would not be given controlling weight. Atl. Marine, 134 S. Ct. at 581 (quotations omitted). Because the proper forum is the Cheyenne River Sioux Tribal Court, this Court should dismiss this case under the doctrine of forum non conveniens, as did Chief Judge Dever III of the Eastern District of North Carolina in Spuller. Respectfully submitted this 18th day of March,

24 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 24 of Marquis Two Tower 285 Peachtree Center Avenue, N.E. Atlanta, Georgia Telephone: (404) Facsimile: (404) PARKER HUDSON RAINER & DOBBS LLP By:/s/ William J. Holley, II William J. Holley, II Georgia Bar No Nancy H. Baughan Georgia Bar No Erin M. Moore Georgia Bar No JENNER & BLOCK LLP Katya Jestin Admitted pro hac vice Neil M. Barofsky Admitted pro hac vice Brian J. Fischer Admitted pro hac vice 919 Third Avenue New York, NY Phone: Fax: Counsel for Defendant CashCall, Inc

25 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 25 of 26 CERTIFICATE OF COMPLIANCE In compliance with N.D. Ga. R. 7.1D, I certify that the foregoing MEMORANDUM OF LAW IN SUPPORT OF CASHCALL, INC. S RENEWED MOTION TO DISMISS BASED ON FORUM NON CONVENIENS has been prepared in conformity with N.D. Ga. R This memorandum was prepared with Times New Roman (14 point) type, with a top margin of one and onehalf (1 ½) inches and a left margin of one (1) inch. This memorandum is proportionately spaced, and is no longer than 25 pages. /s/ William J. Holley, II William J. Holley, II

26 Case 4:14-cv HLM Document 18-1 Filed 03/18/14 Page 26 of 26 CERTIFICATE OF SERVICE I hereby certify that I have this day electronically submitted the foregoing MEMORANDUM OF LAW IN SUPPORT OF CASHCALL, INC. S RENEWED MOTION TO DISMISS BASED ON FORUM NON CONVENIENS to the Clerk of Court using the CM/ECF system which automatically sent notification of such filing to the following attorneys of record, each of whom is a registered participant in the Court s electronic notice and filing system: This 18th day of March, James W. Hurt, Jr. Hurt Stolz, P.C. 345 W. Hancock Ave. Athens, Georgia jhurt@hurtstolz.com Christopher N. Armor Armor Law, LLC 303 Perimeter Center North Suite 300 Atlanta, Georgia chris.armor@armorlaw.com /s/ William J. Holley, II William J. Holley, II _1