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Tater v. Oanda Corp.

United States District Court, W.D. Washington, Seattle

September 21, 2019

JEANNINE TATER, Plaintiff,
v.
OANDA CORPORATION, et al., Defendants.

          ORDER

          JAMES L. ROBART, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the court are four motions: (1) Defendants OANDA (Canada) Corporation ULC (“OANDA Canada”) and OANDA Corporation's (together with OANDA Canada, the “OANDA Defendants”) motion to dismiss pro se Plaintiff Jeannine Tater's complaint (MTD (Dkt. # 10)); (2) Ms. Tater's motion for extension of time to oppose the motion to dismiss and for court-appointed counsel (see 6/10/19 Mot. for Extension (Dkt. # 26)); (3) Ms. Tater's motion for extension of the deadline to join additional parties (see 7/30/19 Mot. for Extension (Dkt. # 34)); and (4) Ms. Tater's motion to compel production of documents (see Mot. to Compel (Dkt. # 36)).[1] The court has considered the motions, the parties' submissions in support of and in opposition to the motions, the relevant portions of the record, and the applicable law. Being fully advised, [2] the court DENIES Ms. Tater's motion for extension of time to oppose the motion to dismiss and for court-appointed counsel, GRANTS the OANDA Defendants' motion to dismiss, and DENIES as MOOT Ms. Tater's motion for extension of the deadline to join additional parties and her motion to compel production of documents.

         II. BACKGROUND

         A. Factual Background

         The OANDA Defendants provide a desktop platform for internet-based foreign exchange trading and currency services information. (Martell Decl. (Dkt. # 12) ¶ 2.[3]) Ms. Tater alleges that she lost $380, 000 trading currency on the OANDA Defendants' platform in 2011 and 2012. (See Am. Compl. (Dkt. # 1-2) at 5-6.) Although Ms. Tater's complaint is difficult to decipher, she appears to claim that her losses resulted from misrepresentations made by the OANDA Defendants, problems with the OANDA Defendants' platform, and improper actions taken by the OANDA Defendants on Ms. Tater's account. (See Id. at 5-7, 9-10.)

         It is not clear from the face of Ms. Tater's pleadings whether Ms. Tater engaged in foreign exchange trading through an account with OANDA Corporation or OANDA Canada. Ms. Tater alleges that she applied for an account with the “New York affiliate” of the OANDA Defendants on February 26, 2011, so that she could “exchange Canadian for USD.” (See Id. at 5.) According to Ms. Tater, her “USA account” was “approved” on March 3, 2011. (See Id. at 5, 9.) The OANDA Defendants claim, however, that Ms. Tater never completed the process of setting up her account with OANDA Corporation- the entity responsible for all U.S. OANDA accounts. (See Martell Decl. ¶¶ 2-3.) Although the parties dispute whether Ms. Tater ever opened a valid U.S. account with OANDA Corporation, even if Ms. Tater is correct that she had a valid account, the OANDA Defendants assert that Ms. Tater never funded a U.S. account with OANDA Corporation or transacted any business through OANDA Corporation (see Id. ¶¶ 3-4), and Ms. Tater does not dispute those allegations (see generally Am. Compl.).

         Instead, the parties appear to agree that the transactions at issue in this case were conducted through a “FXTrade” account that Ms. Tater created with OANDA Canada. (See Am. Compl. at 9 (“On March 6, 2011 defendant told plaintiff to reenroll [through] Oanda Canada . . . . On March 9, 2011 Defendant approved Plaintiff for Canadian Account Number #33023[.]”); Therrien Decl. (Dkt. # 13) ¶ 3 (“On March 7, 2011, Plaintiff Jeannine Tater opened a currency trading account with OANDA Canada by signing up for a foreign exchange account, known as an ‘FXTrade account.'”); id. ¶ 10 (“Between March 2011 and October 2, 2012, Plaintiff engaged in currency exchanges and foreign exchange trades through her OANDA Canada FXTrade account.”); id. ¶ 13, Ex. C at 2-5 (email from Ms. Tater sent to OANDA Canada detailing the problems she experienced using the FXTrade platform).) Ms. Tater opened her OANDA Canada account using a Canadian address and a Canadian email address. (Therrien Decl. ¶ 8; Am. Compl. at 5.)

         In order to create an FXTrade account with OANDA Canada, Ms. Tater had to click through and agree to the terms of the OANDA Canada FXTrade Customer Agreement (Therrien Decl. ¶ 4, Ex. A (“Customer Agreement”)) that was in place at the time she created her account. (Id. ¶¶ 4-6.) The first paragraph of the Customer Agreement states this obligation explicitly:

IMPORTANT, PLEASE READ CAREFULLY: In order to open and operate an FXTrade account with OANDA (Canada) Corporation ULC (“OANDA”), you (the “Customer”) must agree to the terms and conditions of this Customer Agreement (the “Agreement”). Please read this Agreement in its entirety. If you agree to be bound by its terms and conditions, click “I Agree” at the end of this Agreement and continue on with the registration process.

         (Customer Agreement at 2.) The Customer Agreement also contains the following choice of law and forum-selection clause:

Law and Venue. This Agreement shall be governed by the laws of the Province of Ontario, without giving effect to any conflict of laws doctrine that would interfere or prevent the application of this provision. Except as provided in OANDA's optional arbitration agreement, any judicial or administrative action or proceeding arising directly or indirectly under this Agreement, or in connection with the transactions contemplated by this Agreement, whether brought by you or OANDA, shall be held, at the sole discretion of OANDA, within the Judicial District of York in the Province of Ontario exclusively. You hereby consent and submit to, and waive any objections you may have to such venue, and you further agree to waive and forego any right you may have to transfer or change the venue of any action or proceeding encompassed by this Agreement.

(Id. at 14, ¶ 41(f).) OANDA Canada's headquarters are in Toronto, Canada, which is located in the Judicial District of York in the Province of Ontario. (Ryan Decl. (Dkt. # 11) ¶¶ 2-3.)

         B. Procedural History

         On October 8, 2018, Ms. Tater initiated this action by filing a complaint in Whatcom County Superior Court that named “Oanda Corp, ” “OandaFX, ” “Oanda Global Transfer” and several John and Jane Does as defendants. (See Compl. (Dkt. # 1-1) at 4-5.) On December 31, 2018, Ms. Tater amended her complaint and named OANDA Corporation, OANDA Canada, and several John and Jane Does as defendants. (See Am. Compl. at 4-5.) The gravamen of Ms. Tater's complaint is her claim that she lost $380, 000 while foreign exchange trading on the OANDA Defendants' platform due to various wrongs committed by the OANDA Defendants. (See Id. at 5-7.) Based on those allegations, Ms. Tater pleaded causes of action for “[n]egligence, [m]isrepresentation, and/or [f]raud”; breach of contract; and intentional infliction of emotional distress. (Id. at 6-7.)

         The OANDA Defendants removed this case on February 1, 2019 (see Notice of Removal (Dkt. # 1)) and filed a motion to dismiss on February 8, 2019 (see MTD). The OANDA Defendants raise three arguments in their motion to dismiss: (1) this case should be dismissed on forum non conveniens grounds pursuant to the forum-selection clause in the Customer Agreement; (2) the court lacks personal jurisdiction over OANDA Canada; and (3) Ms. Tater's ...


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