United States District Court, W.D. Louisiana, Monroe Division
JUAN PABLO PALACIOS.
THOMAS F. CUPPLES II
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
the Court is Defendant's Motion to Dismiss (Doc. 9) an
action to collect on a promissory note. Defendant's
motion should be denied.
Pablo Palacios (“Palacios”) filed a complaint
against Defendant Thomas Cupples II (“Cupples”),
alleging Cupples defaulted on his April 10, 20012 promissory
note for $ 218, 218.84, payable to Palacios (Doc. 1, Ex.).
Palacios alleges the promissory note was executed by Cupples
to secure, as guarantor, an indebtedness of Agencia
Independiente de Seguros y Fianzas Grupo Aseso, S.A.
(“the Agencia”) (Doc. 1). Palacios alleges the
last payment made on the underlying obligation was on March
21, 2015, leaving Cupples, as guarantor, liable to Palacios
for $ 197, 208.22 plus interest, late fees, costs, and
attorney's fees (Doc. 1).
filed a Motion to Dismiss the complaint pursuant to
Fed.R.Civ.P. rule 12(b)(6) for failure to state a claim upon
which relief may be granted (Doc. 9). Palacios filed a
response in opposition to the motion (Doc. 16), to which
Cupples replied (Doc. 17). Cupples's Motion to Dismiss is
now before the Court for disposition.
Law and Analysis
Standards governing the Motion to Dismiss pursuant to
may grant a motion to dismiss for “failure to state a
claim upon which relief can be granted” under
Fed.R.Civ.P. 12(b)(6). “[A] complaint will survive
dismissal for failure to state a claim if it contains
‘sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.'”
Legate v. Livingston, 822 F.3d 207, 210 (5th Cir.
2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)) (internal citation and quotation omitted). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. The court
must view all well-pleaded facts in the light most favorable
to the plaintiff. Yumilicious Franchise, L.L.C. v.
Barrie, 819 F.3d 170, 174 (5th Cir. 2016).
Cupples' Motion to Dismiss should be
contends Palacios's complaint should be dismissed because
he failed to show Cupples is the guarantor of Agencia's
loan. Cupples argues that his guarantee of Agencia's
indebtedness is not reflected on the face of the promissory
note. Cupples also contends that Louisiana law, rather than
Florida law, is applicable to the action, because Cupples has
always been a resident of Louisiana, the Promissory Note was
signed in Louisiana, Palacios is a citizen of Guatemala, and
Palacios does not have any contacts with the State of
Florida. Finally, Cupples argues the promissory note does not
meet the statutory requirements for a suretyship in
The choice of law provision in the note should be
promissory note signed by Cupples has a Florida choice of law
provision: “This note shall take effect as a sealed
instrument and shall be construed, governed[, ] and enforced
in accordance with the laws of the State of Florida.”
Cupples contends the choice of law provision is invalid due
to the parties' lack of contacts with Florida. Cupples
argues that Louisiana law applies to the note.
federal diversity case, the conflicts law of the forum state
governs. See Curtis Callais Welding, Inc. v. Stolt Comex
Seaway Holdings, Inc., 129 Fed.Appx. 45, 51 (5th Cir.
2005), (citing Roberts v .Energy Dev. Corp., 104
F.3d 782, 786 (5th Cir. 1997)). The rules governing
Louisiana's conflicts law are delineated under Louisiana
Civil Code Articles 3540, 3527, and 3515. Louisiana generally
allows parties to select the law that will determine the
outcome of the disputes arising from a contract. See
Curtis Callais Welding, Inc., 129 Fed.Appx. at 51-52
(citing Verdine v. Ensco Offshore Co., 255 ...