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Palacios v. Cupples

United States District Court, W.D. Louisiana, Monroe Division

February 9, 2018

JUAN PABLO PALACIOS.
v.
THOMAS F. CUPPLES II

          DRELL JUDGE

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes United States Magistrate Judge

         Before the Court is Defendant's Motion to Dismiss (Doc. 9) an action to collect on a promissory note. Defendant's motion should be denied.

         I. Background

         Juan 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[1] (Doc. 1).

         Cupples 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.

         II. Law and Analysis

         A. Standards governing the Motion to Dismiss pursuant to 12(b)(6).

         A court 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).

         B. Cupples' Motion to Dismiss should be denied.

         Cupples 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 Louisiana.

         1. The choice of law provision in the note should be enforced.

         The 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.

         In a 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 ...


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