REPLY to Response to Motion re 44 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM… — Greathouse Capitalplus (Dkt. 52)

Summary

This is the reply brief of Defendants Capital Plus Financial and Crossroads Systems in support of their motion to dismiss Plaintiffs' Amended Class Action Complaint in Greathouse v. Capital Plus Financial, Case No. 4:21-cv-1243-BRW, submitted June 1, 2022. It argues that Plaintiffs rely on contacts and case law that do not establish personal jurisdiction in Arkansas, citing the Giga Declaration for statements that CPF and Crossroads have no offices, employees, or operations in Arkansas. It also argues that Plaintiffs' reliance on Ford and on Oto Analytics is misplaced. It asks the Court to dismiss the Amended Complaint for lack of personal jurisdiction and on the additional grounds in the Motion.

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       Case 4:21-cv-01243-BRW        Document 52      Filed 06/01/22     Page 1 of 12




                     IN THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF ARKANSAS
                               CENTRAL DIVISION

 Eric Greathouse, Ernesto Covarrubias,       §
 Tiffany Sumrall, and Barbara Myles,         §
 individually and on behalf of all others    §
 similarly situated,                         §
                                             §
 Plaintiffs,                                 §      Case No. 4:21–cv–1243–BRW
                                             §
 v.                                          §
                                             §
 Capital Plus Financial, LLC and             §
 Crossroads Systems, Inc.,                   §
 Defendants.
______________________________________________________________________________

 Defendants Capital Plus Financial, LLC’s and Crossroads Systems, Inc.’s Reply Brief in
     Support of Their Motion to Dismiss Plaintiffs’ Amended Class Action Complaint
______________________________________________________________________________

Katherine G. Treistman (pro hac vice)         Karen P. Freeman (Ark. Bar No. 2009094)
Andrew D. Bergman (pro hac vice)              MITCHELL, WILLIAMS, SELIG,
ARNOLD & PORTER KAYE SCHOLER LLP              GATES & WOODYARD, P.L.L.C.
700 Louisiana Street, Suite 4000              4206 South J.B. Hunt Drive, Suite 200
Houston, Texas 77002–2755                     Rogers, Arkansas 72758
Tel.: (713) 576–2400                          Tel.: (479) 464–5650
Fax: (713) 576–2499                           Fax: (479) 464–5680
Katherine.Treistman@arnoldporter.com          Kfreeman@mwlaw.com
Andrew.Bergman@arnoldporter.com
                                              Graham Talley (Ark. Bar No. 2015159)
Eric N. Whitney (pro hac vice)                MITCHELL, WILLIAMS, SELIG,
ARNOLD & PORTER KAYE SCHOLER LLP              GATES & WOODYARD, P.L.L.C.
250 West 55th Street                          425 West Capitol Avenue, Suite 1800
New York, New York 10019–9710                 Little Rock, Arkansas 72201
Tel.: (212) 836–8000                          Tel.: (501) 688–8800
Fax: (212) 836–8689                           Fax: (501) 688–8807
Eric.Whitney@arnoldporter.com                 Gtalley@mwlaw.com

       Counsel for Defendants Capital Plus Financial, LLC and Crossroads Systems, Inc.


Submitted: June 1, 2022
      Case 4:21-cv-01243-BRW             Document 52         Filed 06/01/22      Page 2 of 12




                                         INTRODUCTION

       Unable to point the Court to any relevant connection between Defendants and Arkansas,

Plaintiffs rely on contacts that are insufficient and case law that is inapposite. Plaintiffs account

for Defendants’ alleged activities in Arkansas in a scattershot manner, relying most heavily on

public information from the SBA’s website about CPF’s potential borrowers who live in Arkansas

and CPF’s alleged communications with the SBA’s Little Rock Loan Service Center (“LSC”). On

similar facts, courts have rejected these contacts as insufficient to give rise to personal jurisdiction

because these contacts do not show Defendants purposefully availed themselves in the forum. Nor

do these contacts tend to show the type of minimum contacts that give rise to personal jurisdiction

under the precedent in the Eighth Circuit.

       By contrast, Defendants’ Motion to Dismiss and supporting declaration set forth the

undisputed facts that demonstrate a lack of personal jurisdiction over Defendants. The Giga

Declaration establishes: CPF is a lender that primarily serves underprivileged and minority

borrowers in major metropolitan areas in Texas (ECF 24, Ex. A ¶ 5); CPF and Crossroads do not

have any offices, employees, or operations in Arkansas (id. ¶¶ 6-7); CPF's PPP lending activities

were principally coordinated by Blueacorn, an Arizona company (id. ¶ 9.); and CPF’s loan

underwriting and administration are coordinated through CPF’s offices in Texas. (id. ¶¶ 10-11).

The Giga Declaration also establishes that CPF did not engage in any national advertising

campaigns, and instead, acquired its borrowers through referrals from Blueacorn after it processed

borrowers’ loan applications. Id. ¶ 9. In sum, none of Defendants’ lending activities took place

in Arkansas.

       Plaintiffs cannot establish personal jurisdiction in Arkansas; nor can they demonstrate that

they are entitled to jurisdictional discovery under the Eighth Circuit standard. For the reasons in



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Defendants’ Motion to Dismiss (ECF 44) and this Reply, Defendants respectfully request that the

Court dismiss with prejudice Plaintiffs’ Amended Complaint.


                                          ARGUMENT

I.     Plaintiffs Have Failed to Show Personal Jurisdiction is Proper in Arkansas.

       Dismissal of the Amended Complaint under Federal Rule of Civil Procedure 12(b)(2) is

proper for the reasons presented below.

       A.      Plaintiffs Make Numerous Factual Misrepresentations                       Regarding
               Defendants’ Alleged Contacts with Arkansas.

       To make Defendants’ contacts appear more robust, Plaintiffs misrepresent the facts to

attempt to show Defendants purposefully availed themselves of Arkansas. This effort fails.

       First, Plaintiffs allege that “the terms of [the loan documents] provided that loan proceeds

were to be deposited by CPF into a bank account in the State of Arkansas.” Opp. at 28. The loan

documents, however, do not provide that Mr. Greathouse’s loan is to support an Arkansas business

or to be deposited with an Arkansas bank. See Am. Compl., Ex. A. at 12-13. Mr. Greathouse’s

W-9, which he submitted to support his loan application, lists his address in Russellville, Arkansas.

Id. at 12. Mr. Greathouse’s bank certification provides that his bank is “Evolve Bank & Trust.”

Id. at 13. There is no address affiliated with Evolve Bank & Trust provided in the Loan

Documents. There is also nothing in the terms of the loan that states that payment is to either an

Arkansas residence or business. Id. Mr. Greathouse’s Declaration, on which Plaintiffs also rely,

does not provide any evidence for the position that Defendants acknowledged and intended to send

funds to Arkansas to support an Arkansas business. See ECF 49, Ex. A. ¶¶ 2, 3, 10, 11. On this

point, Mr. Greathouse’s Declaration provides only that he lived in Arkansas and intended to use

the funds to support his business. Id.




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        Plaintiffs have not introduced any evidence that CPF knew that the funds were to be

directed or used in Arkansas, and the record is devoid of such evidence. In fact, Plaintiffs concede

that Mr. Greathouse even sent correspondence to CPF in which he confirmed his understanding

that CPF is a Texas company, and his desire to borrow from CPF was because of his past residence

in Texas. ECF 24, Ex. B., 2-3 (“I want my loan as agreed, you’re a local company to me, I used

to work in [Texas towns of] Bedford and Euless…I would be a great asset to your company if

funded, because there are groups forming on face book [sic] with multiple lawyers looking to sue

BlueAcorn and Capital Plus…”). Even if Defendants knew that Mr. Greathouse intended to use

loan funds to support an Arkansas business, which they did not, mere knowledge that Plaintiff

resided in Arkansas and intended to use loan funds in Arkansas is insufficient to confer personal

jurisdiction over Defendants in Arkansas. Walden v. Fiore, 571 U.S. 277, 284 (2014) (finding that

contacts must arise out of those that “defendant himself creates with the forum [s]tate”) (emphasis

in original) (internal quotations omitted). In sum, merely lending to a borrower, which is all

Plaintiffs have alleged in this case, is “not sufficient in and of itself to establish personal

jurisdiction over the defendant in the plaintiff’s forum state.” Fastpath, Inc. v. Arbela Tech. Corp.,

760 F. 3d, 816, 821 (8th Cir. 2014) (finding that a contract is not sufficient to establish personal

jurisdiction).

        Second, Plaintiffs contend that “Defendants admit they, or at least CPF, directed

communications, advertisements and documents into Arkansas after the loan was approved by the

SBA” and that “there were borrower-facing advertising and communications directed to

Arkansas.” Opp. at 29. These allegations are false. Plaintiffs’ citation to the Giga Declaration is

out of context, which when read in full, explains that Mr. Greathouse “would not have known his

application was referred to CPF until it was processed by Blueacorn and approved by the SBA”

and only then would CPF have engaged in any “communications, advertisements, or [sent]


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documents” to Mr. Greathouse. ECF 24, Ex. A ¶ 12. Defendants maintain that they “do[] not

engage in any independent advertising regarding PPP lending.” Id. ¶ 9. In short, Defendants

would have contacted Mr. Greathouse only after he had applied for a loan with the SBA and his

loan application had been processed by Blueacorn and given to CPF. See id. Nothing in the Giga

Declaration is an admission otherwise. See generally ECF 24, Ex. A.

       Finally, Plaintiffs misrepresent the relationship between Defendants and LSC. First, the

PPP program is codified in Section 7a of the Small Business Act. See 15 U.S.C. § 636(a)(36).

This fact is particularly important in light of Plaintiffs’ admission that, for 7a loans, LSC’s role is

limited to managing the loan after disbursement of the funds. Opp. at 35. Plaintiffs contend that

LSC “assisted with the administration of PPP loans” and “received many emails from lenders

regarding PPP loans” and suggest that a lender would have to routinely communicate with LSC to

service a loan. Id. Even if this were true, it would apply only to funded loans, and has no bearing

for establishing jurisdiction as LSC would not have been involved with any of Plaintiffs’ unfunded

loans because they have not yet been disbursed and therefore did not require servicing. Plaintiffs

erroneously contend that the function of LSC is “unclear.” Opp. at 35 n.6. This contention ignores

the clear evidence from the SBA’s website that states LSC only services loans after disbursement

of funds. See ECF 45 at 37-38. Accordingly, there are no routine contacts with LSC for any

Plaintiffs in the putative class who allege, as the Amended Complaint does, that their loans have

not been funded.

       Even if contact with LSC existed, which it did not, Plaintiffs have misconstrued the

government contacts exception. The exception is importantly rooted in the principle that the

judiciary should not interfere with the smooth functioning of government. See Inv. Co. Inst. v.

United States, 550 F. Supp. 1213, 1217 (D.D.C. 1982). Courts applying the government contact

doctrine have consistently applied it to businesses using government service offices for private


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commercial activities. See id. Moreover, even if CPF were somehow using government services

at LSC to assist in processing and administering government-backed loans, that is precisely the

type of “government petition” described in the string of case law cited by Plaintiffs as not giving

rise to jurisdiction. See, e.g., Lamb Turbine Designs, Inc., 41 F. Supp. 2d 1362, 1365 (N.D. Ga.

1999), aff'd, 240 F.3d 1316 (11th Cir. 2001) (finding that a defendant’s FAA application was not

the type of contact in which defendant could reasonably foresee being hailed into the forum).

       Plaintiffs’ intent to use Defendants’ contacts with LSC as a jurisdictional hook would

substantially and impermissibly expand the scope of personal jurisdiction. Plaintiffs allege that

LSC services the loans for half of the country. Am. Compl. ¶ 33. Permitting personal jurisdiction

based on a lender’s mandatory contact with LSC for government-backed loans once disbursed

would subject all Section 7a lenders, no matter where they are located, to either personal

jurisdiction in Arkansas or California—an inconceivable result that this Court should not allow.

See Inv. Co. Inst., 550 F. Supp. at 1217.

       Plaintiffs’ allegations regarding Defendants’ contacts with Arkansas amount to little more

than a string of misrepresentations. Accordingly, Plaintiffs have not demonstrated that Defendants

have the minimum contacts with Arkansas to subject them to personal jurisdiction.

       B.      Plaintiffs Erroneously Rely on Ford.

       Plaintiffs’ reliance on the Supreme Court’s decision in Ford is misplaced. See Opp. § I.

In Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., the Court affirmed the long-standing principle

that specific personal jurisdiction exists only in cases in which plaintiffs’ claims “arise out of or

relate to the defendant’s contacts within the forum.” 141 S. Ct. 1017, 1025 (2021). Ford does not

stand for the proposition that “‘entering a contractual relationship centered [in the forum]’ is indeed

sufficient to confer jurisdiction.” Opp. at 26.




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       Ford involved the relationship between defendant’s contacts with the forum and plaintiff’s

claims. See Ford, 141 S. Ct. at 1022-23. The defendant, Ford, a nationwide auto manufacturer,

had many connections with the forum, including on the ground brick-and-mortar dealerships,

physical repair locations, and nationwide advertising. Id. An injury from an automobile accident

gave rise to plaintiff’s claims. Id. The Court held that because Ford’s contacts “related to”

plaintiff’s claims, personal jurisdiction was proper. Id. at 1024. Unlike in our case, Ford had far-

reaching and numerous contacts with the forum. Id. Ford did not grapple with how many and

what types of contacts are jurisdictionally sufficient to confer personal jurisdiction. Id. at 1028.

The Court made clear that its Ford decision does not mean “anything goes” and does not relieve

Plaintiffs of their burden to show defendant has minimum contacts with a forum. Id. at 1026.

       In this case, the record is clear that Defendants did not deliberately reach into Arkansas.

Defendants did not have any operational presence in Arkansas, did not advertise in Arkansas, did

not conduct their underwriting activities in Arkansas, and have no brick-and-mortar locations in

Arkansas. ECF 24, Ex. A ¶¶ 6–7. Defendants did not hire, contract, or otherwise engage any

intermediary to conduct CPF’s business in Arkansas. See id. Plaintiffs’ allegations fail to show

that Defendants deliberately targeted Arkansas to fall in line with the Court’s ruling in Ford,

thereby making this precedent inapplicable.

       C.      Plaintiffs’ Reliance on Oto Analytics Is Misplaced.

       Plaintiffs’ reliance on the decision in Oto Analytics is similarly misplaced. Plaintiffs cite

to a recent order on defendant’s motion to dismiss in Oto Analytics for the argument that a court

may exercise personal jurisdiction on CPF through the acts of an agent in the forum. Opp. at 15-

16. First, in ruling on defendant’s motion to dismiss, the Oto Analytics court found that plaintiff

Womply, not Blueacorn, was an “agent” only as defined by the SBA for the purpose of collecting

agent fees. Opp. at 15 (“Womply was an ‘agent’”); see Oto Analytics, Inc. v. Cap. Plus Fin., LLC,


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      Case 4:21-cv-01243-BRW            Document 52        Filed 06/01/22       Page 8 of 12



2022 WL 1488441, at *5 (N.D. Tex., May 11, 2022). The court did not conclude that Womply

was an agent for purposes of determining personal jurisdiction. See id. Plaintiffs’ citation is

erroneous and irrelevant.

       The court also did not hold that there was imputed personal jurisdiction on CPF through

Blueacorn’s presence in the forum. See id. But even if that were the ruling, which it was not,

Plaintiffs’ Amended Complaint does not allege that Blueacorn had sufficient minimum contacts

or purposely availed itself in Arkansas sufficient to confer personal jurisdiction over Blueacorn in

Arkansas. See generally Am. Compl. Accordingly, Plaintiffs’ argument that an agent’s contacts

can be imputed to its principal is another dead-end.

       Plaintiffs also attempt to use the Oto Analytics decision to suggest that the loan applications

alone were “sufficient minimum contacts” to confer personal jurisdiction over Defendants in

Arkansas. Opp. at 16. To the contrary, at most the Oto Analytics court’s decision supports a

finding of sufficient minimum contacts between Blueacorn and Texas because the court found

every loan application Blueacorn sent to CPF created a contact with Texas due to the fact that “all

loan origination [was conducted by CPF] from Texas”—a conclusion which does not aid Plaintiffs

in this case. Oto Analytics, Inc. v. Cap. Plus Fin., LLC, 2022 WL 1082368, at *6 (N.D. Tex. Apr.

11, 2022). The Oto Analytics decision only reinforces Defendants’ argument that personal

jurisdiction is inappropriate in Arkansas for a Texas company that conducts its business in Texas.

       D.      Plaintiffs’ Interpretation of Bristol-Myers is Incorrect.

       Correctly applied to the instant case, Bristol-Myers results in a dismissal of the non-

Arkansas Plaintiffs. “In order for a court to exercise specific jurisdiction over a claim, there must

be an affiliation between the forum and the underlying controversy.” Vallone v. VJS Sols. Grp.,

LLC, 9 F.4th 861, 865 (8th Cir. 2021) (quoting Bristol-Myers Squibb v. Superior Ct. of Cal., San

Francisco Cnty., 137 S. Ct. 1773, 1781 (2017)). This fundamental premise serves as an important


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         Case 4:21-cv-01243-BRW          Document 52        Filed 06/01/22     Page 9 of 12



distinction that renders Plaintiffs’ cited case law inapplicable. Plaintiffs’ argument that Bristol

Myers does not apply to class actions attempts to rely on a string of cases in which courts declined

to extend Bristol Myers to unnamed class members in a putative class. See In re Folgers Coffee,

2021 WL 7004991, at *5 (W.D. Mo. Dec. 28, 2021); Krumm v. Kittrich Corp., 2019 WL 687609,

*5 (E.D. Mo. Dec. 17, 2019); Knotts v. Nissan N. Am., Inc., 346 F. Supp. 3d 1310, 1332 (D. Minn.

2018).

         While Plaintiffs are correct that courts have declined to extend Bristol-Myers to class

actions involving unnamed plaintiffs, this fact is entirely irrelevant. The reasoning of those cases

addresses the process of class certification and concludes that it has numerous safeguards to avoid

any due process violations because it ensures unnamed plaintiffs have a single unified claim to be

brought into the class. See Krumm, 2019 WL 6876059, at *5. None of these cases, however, stand

for the proposition that a named plaintiff can escape the requirement of establishing personal

jurisdiction. The mere fact that another named Plaintiff was allegedly injured in Arkansas does

not rescue non-resident Plaintiffs’ claims by obviating their need to establish specific jurisdiction

over their claims. Bristol-Myers Squibb, 137 S. Ct. at 1781.

II.      Plaintiffs Failed to Demonstrate that They Are Entitled to Jurisdictional Discovery.

         Plaintiffs’ argument for jurisdictional discovery is similarly unavailing and demonstrates a

clear attempt to obtain premature, nationwide class discovery. Under Eighth Circuit precedent, to

obtain discovery, Plaintiffs must show “certain facts necessary to resolving the jurisdictional

inquiry are either unknown or disputed.” See Viasystems, Inc. v. EBM-Papst St. Georgen GmbH

& Co., KG, 646 F.3d 589, 598 (8th Cir. 2011). Jurisdictional discovery is an extraordinary remedy




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and “[w]hen a plaintiff offers only speculation or conclusory assertions about contacts with a

forum state,” a court is within its discretion to deny the request. Id.

       Plaintiffs allege Defendants have numerous contacts with Arkansas, including many

funded borrowers in the state, Mr. Greathouse’s residence in Arkansas, and communications with

LSC. There can be no dispute about these contacts, because even if true they are insufficient as a

matter of law to establish personal jurisdiction over Defendants.

       Plaintiffs concede that the number of loans CPF funded in Arkansas is not in dispute

because Plaintiffs cite to publicly available loan information from SBA’s website, which provides

the number of CPF funded loans in Arkansas. Opp. at 18. It is only when Plaintiffs attempt to

meet the Eighth Circuit test for jurisdictional discovery that they allege CPF’s contacts with

Arkansas are disputed and unknown. Opp. at 43-44. Plaintiffs also pose a series of hypothetical

questions about Defendants’ potential actions in the forum, all of which are red herrings for

purposes of establishing jurisdiction because Defendants have stated the totality of their relevant

activities in Arkansas. Opp. at 44.      The record is clear on Defendants’ activities:     CPF’s

communications, underwriting activities, and operations did not take place in Arkansas and any

fees received on these loans were not received in Arkansas. ECF 24, Ex. A ¶¶ 6-9. Broad

discovery on what communications CPF had with borrowers and what underwriting activities CPF

performed would not affect the personal jurisdiction inquiry because it would not disprove what

is already known—that CPF does not operate in Arkansas. Any additional discovery would not

and cannot connect the named Plaintiffs’ causes of action to Defendants’ conduct in the forum.

       Moreover, Plaintiffs contend because they produced documentary evidence, they should

be entitled to jurisdictional discovery under the Eighth Circuit test.      First, Plaintiffs have

introduced only documentary evidence that Defendants have funded Arkansas loans.              That




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information is publicly available from SBA’s website and undisputed.              Accordingly, the

introduction of this evidence does not meet the standard for jurisdictional discovery.

       Second, all cases on which Plaintiffs rely for this proposition are easily distinguishable. In

Steinbuch v. Cutler, a stream-of-commerce case, the court permitted jurisdictional discovery in a

case in which the defendant was a novelist and the documentary evidence produced with the

Complaint was evidence that his book was available at every bookstore in the forum. 518 F.3d

580, 587 (8th Cir. 2008). Likewise, in Valley View LLC v. Prod. Co-op. Oil Mill, the court granted

jurisdictional discovery in a case in which defendant’s own website touted that it conducted

business in the forum. 2015 WL 853277, at *2 (E.D. Ark. 2015). Finally, in Wesson v. Lamb AB,

the court denied jurisdictional discovery for the very reason the Court should deny the request in

our case—Plaintiffs have given no detail regarding what “specific information they seek” and how

it would support personal jurisdiction. See 2018 WL 11320712, at *8 (W.D Ark. 2018).

       Unlike the defendants in these stream-of-commerce cases, Defendants have not set up

physical brick-and-mortar locations in Arkansas, do not market their services in Arkansas, and do

not use Arkansas intermediaries to sell their products. ECF 24, Ex. A. ¶¶ 6-10. Any attempt to

obtain additional discovery beyond already known, undisputed, and publicly available information

is precisely the type of “speculation” and fishing expedition that courts in this Circuit have

routinely rejected. See Viasystems, Inc., 646 F.3d at 598.


                                         CONCLUSION

       For the foregoing reasons, and those presented in its initial briefing on its Motion to

Dismiss, Defendants respectfully request that the Court issue an order dismissing the Amended

Complaint for lack of personal jurisdiction, as well as the additional grounds presented in the

Motion, and grant such other and further relief to which they may be justly entitled.

   Respectfully submitted on June 1, 2022.

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Case 4:21-cv-01243-BRW   Document 52   Filed 06/01/22     Page 12 of 12




                                 Karen P. Freeman
                                 MITCHELL, WILLIAMS, SELIG,
                                 GATES & WOODYARD, P.L.L.C.
                                 4206 South J.B. Hunt Drive, Suite 200
                                 Rogers, Arkansas 72758
                                 Tel.: (479) 464–5650
                                 Fax: (479) 464–5680
                                 Kfreeman@mwlaw.com

                                 Graham Talley
                                 MITCHELL, WILLIAMS, SELIG,
                                 GATES & WOODYARD, P.L.L.C.
                                 425 West Capitol Avenue, Suite 1800
                                 Little Rock, Arkansas 72201
                                 Tel.: (501) 688–8800
                                 Fax: (501) 688–8807
                                 Gtalley@mwlaw.com

                                 Katherine G. Treistman (pro hac vice)
                                 Andrew D. Bergman (pro hac vice)
                                 ARNOLD & PORTER KAYE SCHOLER LLP
                                 700 Louisiana Street, Suite 4000
                                 Houston, Texas 77002–2755
                                 Tel.: (713) 576–2400
                                 Fax: (713) 576–2499
                                 Katherine.Treistman@arnoldporter.com
                                 Andrew.Bergman@arnoldporter.com

                                 Eric N. Whitney (pro hac vice)
                                 ARNOLD & PORTER KAYE SCHOLER LLP
                                 250 West 55th Street
                                 New York, New York 10019–9710
                                 Tel.: (212) 836–8000
                                 Fax: (212) 836–8689
                                 Eric.Whitney@arnoldporter.com

                                 Attorneys for Defendants Capital Plus
                                 Financial, LLC and Crossroads Systems, Inc.




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