United States District Court, W.D. Washington, Tacoma
ORDER DENYING DEFENDANTS' MOTION TO DISMISS
SECOND AMENDED COMPLAINT AND GRANTING DEFENDANTS' MOTION
TO TRANSFER VENUE
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants Wyndham
Destinations, Inc. (“WDI”) (formerly Wyndham
Worldwide Corporation (“WWC”)), Wyndham Vacation
Ownership, Inc. (“WVO”), and Wyndham Vacation
Resorts, Inc.'s (“WVR”) (collectively,
“Defendants”) motion to dismiss second amended
complaint and/or for summary judgment and/or to transfer
venue. Dkt. 37. The Court has considered the pleadings filed
in support of and in opposition to the motion and the
remainder of the file and hereby grants the motion to
transfer venue and denies the remainder of the motion for the
reasons stated herein.
Brandon Bluhm (“Bluhm”) filed suit in this Court
on October 8, 2018. Dkt. 1. On January 24, 2019, Defendants
moved for transfer of venue, or in the alternative for
dismissal pursuant to Fed.R.Civ.P. 12(b)(6), 12(b)(7), or
summary judgment pursuant to Fed.R.Civ.P. 56. Dkt. 11. On
April 9, 2019, the Court granted Defendants' motion to
dismiss without prejudice on the basis of Bluhm's failure
to establish jurisdiction and granted Bluhm leave to amend
his complaint. Dkt. 18.
April 19, 2019, Bluhm filed his First Amended Complaint. Dkt.
19. On May 3, 2019, Defendants filed a second motion to
dismiss, or in the alternative for summary judgment, or in
the alternative to transfer venue. Dkt. 20. On May 13, 2019,
the Court entered the parties' stipulated order to permit
substitution of counsel for Bluhm. Dkt. 22. On July 12, 2019,
the Court again granted Defendants' motion to dismiss for
lack of jurisdiction and granted leave to amend but advised
Bluhm that the Court may be skeptical of further requests for
leave to amend. Dkt. 30.
26, Bluhm filed his Second Amended Complaint. Dkt. 31. In
addition to the named Defendants set out above, Bluhm also
named Wyndham Does 1-50. Id. On August 9, 2019,
Defendants filed a third motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(2), 12(b)(6), and/or for summary judgment,
and/or to transfer venue. Dkt. 37. On September 3, 2019,
Bluhm responded. Dkt. 40. On September 11, 2019, Defendants
replied. Dkt. 43.
the Court has set out the facts of this case in previous
Orders, the Court here sets out the more detailed factual
allegations of the Second Amended Complaint. Dkt. 31. Bluhm
generally alleges that because WDI has hundreds of
subsidiaries, "it is unclear which entity (or entities)
originally solicited Plaintiffs business; which entity
designed, owns, and manages the reservations system at issue,
which entity manages and/or employs the individuals Plaintiff
spoke to about the problems that began in mid-2017, which
entity (or entities) held title to Plaintiffs timeshare
contracts at the time he was forced to reconvey them; or
which entity makes strategic decisions concerning
[Defendants'] timeshare business." Id.
¶¶ 14-15. In much of his complaint, Bluhm refers to
Defendants collectively as Wyndham. Id. ¶ 7.
1996, Defendants mailed Bluhm an advertisement to his home in
Washington State. Id. ¶ 24. Responding to the
advertisement, Bluhm went on vacation at a resort in Pompano
Beach, Florida owned by Defendants. Id. ¶¶
24-25. While in Florida, Bluhm purchased a timeshare for
between $27, 000 and $30, 000, in addition to ongoing monthly
fees, from an entity called Fairfield Resorts. Id.
¶¶ 24 & n.10, 25. Fairfield Resorts was
acquired by WVR in 2006. Id. ¶ 24. n. 10. Bluhm
continued to buy timeshare deeds and points, and by 2000, he
owned 1, 000, 000 points, sufficient to pay for three months
of travel per year. Id. ¶¶ 27-28. Between
2000 and 2012, Bluhm acquired additional timeshare points and
deeds, more than doubling his holdings. Id. ¶
29. In 2012, Bluhm learned Defendants offered a system called
Extra Holidays where people who owned Defendants'
timeshares could offer those timeshares for rent to the
public. Id. ¶ 30. Bluhm alleges that WVR
managed this system, possibly along with WVO and WDI, and
that Defendants' timeshares could not be listed for rent
through other vacation-rental services. Id.
¶¶ 12, 30. When Bluhm sold a booking through Extra
Holidays, Defendants would keep 40% of the sale, and Bluhm
would receive 60%, paid by "Wyndham Vacation Ownership,
Extra Holidays department." Id. ¶
continued to acquire additional timeshare interests,
including indirectly from disgruntled owners, and sell
bookings strategically, such that by 2013 selling bookings
through Extra Holidays was his primary source of income.
Id. ¶¶ 32-33. In 2016, Bluhm earned $262,
000 in gross income through Extra Holidays. Id.
¶37. In May of 2017, Bluhm owned approximately 18, 000,
000 points and "68 associated fractional
contracts." Id. ¶35.
alleges that in April or May 2017, "a systemwide message
informed [Bluhm] that the reservation website would be down
for the weekend while [Defendants] launched a new
system." Id.¶39. Bluhm alleges that he did
not regain access to the system after the weekend and was
extremely concerned because he needed to prepare for
lucrative summer bookings during this period. Id.
¶¶ 41-42. Bluhm also alleges that "other
customers and partners, at least those with fewer points and
deeds" regained access to their accounts. Id.
¶42. Bluhm repeatedly called and emailed Defendants but
was told to "give it time." Id. ¶ 43.
In July 2017, Bluhm spoke to Andres Mosquera
("Mosquera") on the phone. Id. ¶44.
Mosquera "described himself as part of [Defendants']
management team and had higher level access."
Id. Mosquera told Bluhm his access could be restored
if 64 contracts were removed from his portfolio. Id.
Bluhm alleges that Defendants "[were] legally and
contractually obligated to allow [Bluhm] to use his
properties as intended" but "refused to help,
stated that [they] would not honor [their] commitments, and
told [Bluhm] that he had no choice but to convey the
contracts back to them." Id. ¶ 45. Bluhm
alleges that Defendants told him he could only regain access
to the system if he sold back 64 contracts, the equivalent of
14, 000, 000 of his 18, 000, 000 points. Id. ¶
July 2017 and the end of August 2017, Defendants emailed
Bluhm 64 "contracts and/or deeds" which he signed,
notarized, and mailed back, in exchange for Defendants'
paying off a $199, 043.07 loan Bluhm owed to an unspecified
party and Defendants' promise that he would regain access
to the system. Id. ¶ 49. As part of these
transactions Bluhm also entered the "Purported 8/17/17
Agreement" (the "August 17, 2017 Agreement")
with WVO. Id.
alleges that he was first able to access the system on
October 18, 2017 and lost five months of rental income in the
intervening period. Id. ¶ 50. He alleges that
he experiences ongoing website errors which cause him to lose
income. Id. ¶¶51-52.
Bluhm alleges that in discovery, he "intends to find out
whether the new system's inability to handle his accounts
was a design feature maliciously implemented by Wyndham,
rather than a bug as was represented." Id.
all Defendants, Bluhm alleges breach of contract, violation
of the Washington Timeshare Act, RCW Chapter 64.36, violation
of the Washington Consumer Protection Act, RCW Chapter 19.86,
violation of Florida's Deceptive and Unfair Trade
Practices Act, negligence, gross negligence, tortious
interference with business expectancy, and unjust enrichment.
Against WVR and WVO, Bluhm also alleges fraud and fraud in
the inducement. Bluhm seeks injunctive relief and other
relief including damages and rescission or reformation of
motion asks the Court to dismiss Bluhm's claims for lack
of personal jurisdiction or for failure to state a claim, or
in the alternative, transfer the action to the Middle
District of Florida. Dkt. 37 at 2. Defendants' reply
argues that Bluhm failed to respond to the motion to transfer
venue, so the Court should grant it. Dkt. 43 at 2. As before,
the Court finds it prudent to assess jurisdiction over the
parties before considering a motion to dismiss or to transfer
Motion to Dismiss Under ...