United States District Court, D. Maryland
Alicia Everette, Plaintiff: E David Hoskins, LEAD ATTORNEY,
The Law Offices of E David Hoskins LLC, Baltimore, MD; Steven
B. Isbister, The Law Offices of E. David Hoskins, LLC,
Joshua Mitchem, Jeremy D. Shaffer, Defendants: David Bryan
Applefeld, LEAD ATTORNEY, Adelberg Rudow Dorf and Hendler
LLC, Baltimore, MD; Paul Croker, PRO HAC VICE, Armstrong
Teasdale LLP, Kansas City, MO.
Scott A. Tucker, Defendant: Paula M Junghans, LEAD ATTORNEY,
Zuckerman Spaeder LLP, Washington, DC.
Mobiloans, LLC, Defendant: Catherine F Munson, Charles W
Galbraith, PRO HAC VICE, Gregory Matthew Jacobs, Kilpatrick
Townsend and Stockton LLP, Washington, DC; Mark H Reeves, PRO
HAC VICE, Kilpatrick Townsend and Stockton LLP, Augusta, GA.
Riverbend Finance, LLC, Defendant: Michael R Sklaire, LEAD
ATTORNEY, Thomas John McKee, Jr, Greenberg Traurig LLP,
McLean, VA; Robert J Herrington, PRO HAC VICE, Greenberg
Traurig LLP, Los Angeles, CA.
C. Blake, United States District Judge.
Everette seeks to bring a class action lawsuit against Joshua
Mitchem; Jeremy Shaffer; Scott Tucker; NDG Financial
Corporation; MobiLoans, LLC (" MobiLoans" ); and
Riverbend Finance, LLC (" Riverbend" ) on behalf of
consumers who received payday loans between May 1, 2012, and
May 1, 2015, from the following companies: Action Payday,
Bottom Dollar Payday, Ameriloan, United Cash Loans,
CashTaxi.com, MobiLoans, or Riverbend Cash. Everette requests
an order certifying this lawsuit as a class action; a
judgment against the defendants for violations of various
Maryland commercial laws and the Electronic Fund Transfer
Act, 15 U.S.C. § 1693; and the costs of litigation and
pending are MobiLoans' and Riverbend's motions to
dismiss for lack of jurisdiction, as well as the
plaintiff's motion for discovery. The court will address
the remaining motions to dismiss filed by Mitchem, Shaffer,
and Tucker in a separate opinion. An order of default was
entered against defendant NDG Financial Corporation on August
6, 2015. The issues have been fully briefed, and no hearing
is necessary. See Local R. 105.6 (D.Md.2014). For
the reasons stated below, Everette's motion for discovery
will be denied, and MobiLoans' and Riverbend's
motions to dismiss will be granted.
obtained a loan from MobiLoans, a tribal lending entity
wholly owned by the Tunica-Biloxi Tribe of Louisiana, in
2013. (Compl. ¶ ¶ 101, 107, ECF No. 1.) Also in
2013, Everette received two payday loans from Riverbend Cash,
which is owned and operated by Riverbend, a tribal lending
business owned by the Fort Belknap Indian Community. (Compl.
¶ ¶ 114, 121.) The plaintiff claims that MobiLoans
and Riverbend engaged in unlawful consumer lending and
collection practices. ( See Compl. ¶ ¶
27-28, 106-113, 120-128.) MobiLoans and Riverbend filed
motions to dismiss for lack of subject matter jurisdiction.
Both defendants argue they are " arms of the tribe"
entitled to tribal sovereign immunity because tribes created
the lending companies under tribal law, tribes have complete
ownership and control over the companies, and the companies
protect the tribes' sovereignty by funding governmental
services for tribal members. In response, the plaintiff
argues that Riverbend and MobiLoans are not entitled to
tribal sovereign immunity because they are not tribes,
traditional government agencies, or casinos, but are instead
" mere business[es]" engaging in off-reservation
commercial activity; they are limited liability companies,
and therefore a judgment against them will not reach the
tribes' assets; and granting the defendants sovereign
immunity would leave the plaintiff without a judicial remedy.
(Pl.'s Opp'n 5-13, ECF No. 40.)
motion pursuant to Federal Rule of Civil Procedure 12(b)(1)
should be granted " only if the material jurisdictional
facts are not in dispute and the moving party is entitled to
prevail as a matter of law." Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999); see
also United States ex rel. Vuyyuru v. Jadhav,
555 F.3d 337, 347-48 (4th Cir. 2009). The plaintiff bears the
burden of proving that subject matter jurisdiction exists.
Piney Run Preservation Ass'n v. Cnty. Comm'rs of
Carroll Cnty., Md., 523 F.3d 453, 459 (4th Cir. 2008).
Moreover, " [w]hen a defendant challenges subject matter
jurisdiction via a Rule 12(b)(1) motion to dismiss, the
district court may regard the pleadings as mere evidence on
the issue and may consider evidence outside the pleadings . .
. ." Blitz v. Napolitano, 700 F.3d 733, 736 n.3
(4th Cir. 2012) (quoting Velasco v. Gov't of
Indonesia, 370 F.3d 392, 398 (4th Cir. 2004)).
defendant lending companies have provided substantial
evidence that they are wholly owned by tribes and were formed
under tribal law to raise revenue for the tribes. MobiLoans
and Riverbend have filed declarations of tribal members and
officers of the companies attesting to the facts stated in
this opinion, as well as copies of tribal resolutions that
created the companies. Everette has failed to identify any
specific facts to support her assertion that tribes do not
own, operate, and control MobiLoans and Riverbend. "
When a plaintiff offers only speculation or conclusory
assertions..., a court is within its discretion in denying
jurisdictional discovery." Carefirst of Maryland,
Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390,
402 (4th Cir. 2003); see alsoWhite v. Univ. of
California, 765 F.3d 1010, 1025 (9th Cir. 2014)
(upholding denial of jurisdictional discovery where the
district court concluded that an entity was an " arm of
the tribe" and the plaintiff offered " only
speculative arguments" that the entity was not entitled
to sovereign immunity). Because ...