NO. CIV-20-1104-HE
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`ORDER
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`vs.
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`AGCO CORPORATION, et al.,
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`Defendants.
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`Case 7:21-cv-00006-O Document 43 Filed 01/26/21 Page 1 of 6 PageID 574Case 7:21-cv-00006-O Document 43 Filed 01/26/21 Page 1 of 6 PageID 574
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`IN THE UNITED STATES DISTRICT COURT FOR THE
`WESTERN DISTRICT OF OKLAHOMA
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`JOHN CRAIG FIRST, et al.,
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`Plaintiffs,
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`This case arises out of the purchase of a pre-owned combine and header by plaintiff
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`John Craig First. He, his wife, and their limited liability company assert various claims
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`against Rolling Plains Implement Company, Inc. (“Rolling Plains”), the seller. Also sued
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`are AGCO Corporation, for which Rolling Plains is alleged to be an authorized dealer, and
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`several others AGCO-related entities.
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`Although multiple claims on various theories are asserted, the central thrust of
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`plaintiffs’ case is that defendants, or some of them, misrepresented the number of hours
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`the combine engine had been operated and that defendants had “rolled back” the number
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`of hours shown on the machine’s hour meter. Plaintiffs, who are custom harvesters, allege
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`that they experienced breakdowns of the equipment and eventually took it to a repair
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`facility in North Dakota, that the facility had previously serviced the same equipment, and
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`that the prior service history established that the hours on the engine substantially exceeded
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`what was represented by defendants at the time of purchase by Mr. First.
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`Case 7:21-cv-00006-O Document 43 Filed 01/26/21 Page 2 of 6 PageID 575Case 7:21-cv-00006-O Document 43 Filed 01/26/21 Page 2 of 6 PageID 575
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`Plaintiffs filed this case in the District Court of Oklahoma County, State of
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`Oklahoma. Defendants removed the case to this court on the basis of diversity jurisdiction.
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`There has been no challenge to the propriety of the removal.
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`All defendants have filed motions to dismiss. For the most part, the motions
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`contend that plaintiff’s petition fails to state a claim against the particular moving
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`defendant. However, the motion of Rolling Plains also seeks dismissal based on lack of
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`personal jurisdiction over it and based on improper venue. That motion is therefore
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`addressed first.
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`The Rolling Plains motion objects both to personal jurisdiction and venue but
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`devotes virtually all of its argument to the issue of venue. However, on the assumption
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`that Rolling Plains has said enough to at least raise the issue, the burden is on plaintiff to
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`show the existence of jurisdiction. XMission, L.C. v. Fluent LLC, 955 F.3d 833, 839 (10th
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`Cir. 2020). The court concludes that plaintiff has made a sufficient prima facie showing
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`of personal jurisdiction for this court to address other issues in the case. It has submitted
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`an affidavit to the effect that Rolling Plains, which is located in Vernon, Texas, some 20
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`or so miles from Tillman County, Oklahoma, routinely conducts business in Tillman
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`County, including repairing and servicing combines and other equipment. This is sufficient
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`to make a prima facie showing that Rolling Plains, although a Texas corporation, has
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`purposefully directed activities at residents of the State of Oklahoma, and has availed itself
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`of the opportunity of doing business there, such that the exercise of personal jurisdiction
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`over it is consistent with notions of fair play and substantial justice. Id. at 840-41.
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`2
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`Case 7:21-cv-00006-O Document 43 Filed 01/26/21 Page 3 of 6 PageID 576Case 7:21-cv-00006-O Document 43 Filed 01/26/21 Page 3 of 6 PageID 576
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`As to venue, Rolling Plains contends that venue is not proper in Oklahoma when
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`tested against the requirements of 28 U.S.C. § 1391.1 “Whether venue is ‘wrong’ or
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`‘improper’ depends exclusively on whether the court in which the case was brought
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`satisfies the requirements of federal venue laws.” Atlantic Marine Const. Co., Inc. v. U.S.
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`Dist. Court for Western Dist. of Texas, 571 U.S. 49, 55 (2013). Section 1391(a) provides,
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`in pertinent part, that venue is proper in:
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`(1) a judicial district in which any defendant resides, if all defendants are
`residents of the State in which the district is located;
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`(2) a judicial district in which a substantial part of the events or omissions
`giving rise to the claim occurred, or a substantial part of property that is the
`subject of the action is situated;
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` . .
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`Here, it appears undisputed that none of the defendants are residents of Oklahoma.
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`So far as appears from the parties’ submissions, the “events or omissions” upon which
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`plaintiffs rely for their claims all occurred in Texas. That is where the seller was located.
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`That is apparently where the purchase contract and related financing documents were
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`negotiated and signed. That is apparently where any representations as to the purchase
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`were made by defendants. Plaintiff does not suggest that venue is proper based on where
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`a “substantial part of the property”, presumably the combine, is located. Indeed, plaintiff
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`makes no real effort to justify venue in the Western District of Oklahoma at all, but argues
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`1 For reasons not clear to the court, Rolling Plains (and to a lesser extent plaintiff) also
`discuss the Oklahoma and Texas venue statutes. The question here is not what county the case
`should have been filed in in state court. Rather, the question is whether, the case having been
`removed to federal court, venue is proper in the Western District of Oklahoma.
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`3
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`Case 7:21-cv-00006-O Document 43 Filed 01/26/21 Page 4 of 6 PageID 577Case 7:21-cv-00006-O Document 43 Filed 01/26/21 Page 4 of 6 PageID 577
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`instead that, rather than dismissing the case, the court should transfer it to the U. S. District
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`Court for the Northern District of Texas. Under these circumstances, the court concludes
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`Rolling Plains’ objection to venue should prevail but that, rather than dismissing the case,
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`the interests of justice warrant transferring it to the Northern District of Texas. 28 U.S.C.
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`§ 1406(a).
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`Having concluded that a case should be transferred to another district, the court
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`would ordinarily decline to rule on other pending motions and leave them for disposition
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`in the transferee district. However, as the remaining pending motions in this case go largely
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`to the sufficiency of the pleadings, which the court has reviewed, and the disposition of
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`those motions may advance the prompt disposition of the case, the court concludes they
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`should be addressed now.
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` Various of the motions to dismiss correctly argue that the petition does not state a
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`claim in favor of plaintiffs Lacey First and First Farms and Trucking LLC. The allegations
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`indicate the purchase contact was entered into by John First as the purchaser. They state
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`no basis for a conclusion that Lacey First or the LLC had any interest in it, nor do they give
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`any indication that representations about it, fraudulent or otherwise, were given to those
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`plaintiffs. The motions will therefore be granted as to the purported claims of those
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`plaintiffs.
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`Various defendants also argue that the fraud claims are insufficiently pleaded. See
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`Fed.R.Civ.P. 9(b). The petition makes various conclusory references to representations
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`made by “the defendants.” “[W]here fraud is alleged against multiple defendants, blanket
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`allegations of fraud couched in language such as ‘by the defendants’ are insufficient,
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`Case 7:21-cv-00006-O Document 43 Filed 01/26/21 Page 5 of 6 PageID 578Case 7:21-cv-00006-O Document 43 Filed 01/26/21 Page 5 of 6 PageID 578
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`Instead, the specifics of the alleged fraudulent activity of each defendant must be set forth.”
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`Lillard v. Stockton, 267 F.Supp.3d 1081, (N.D. Okla. 2003) (citation omitted). A plaintiff
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`must “set forth the time, place, and contents of the false representation, the identity of the
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`party making the false statements and the consequences thereof.” Jensen v. America’s
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`Wholesale Lender, 425 Fed. Appx. 761, 763 (10th Cir. 2011). It does not avoid the need
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`for reasonable specificity as to fraud claims to assert a “civil conspiracy” theory. “To the
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`extent the civil conspiracy claim is based on acts that are alleged unlawful because they
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`constitute fraud, . . . the fraudulent acts must be pled under the standard of Rule 9(b).” In
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`re Quest Comms. Intern., Inc. Sec. Litig., 387 F.Supp.2d 1130, 1153 (D. Colo. 2005).
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`Specifically, a “civil conspiracy consists of a combination of two or more persons to do an
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`unlawful act, or to do a lawful act by unlawful means.” Brock v. Thompson, 948 P.2d 279,
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`294 (Okla. 1997). More than conclusory references to a civil conspiracy is required.
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`Further, to the extent that plaintiffs assert misrepresentations by a defendant other than the
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`assertions of falsified hours, those must be pleaded with reasonable specificity as well.
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`For these reasons,2 the court concludes the various motions to dismiss [Doc. Nos.
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`17, 21, 22, 23, 24 and 25] should be and are GRANTED and plaintiffs’ claims are
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`dismissed. As some or all of the pleading deficiencies are remediable by amendment,
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`plaintiffs are granted leave to file an amended complaint within 21 days. Further, pursuant
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`2 The court concludes it is unnecessary to address any other issues potentially raised by
`the motions to dismiss, as an amended complaint conforming to federal pleading standards may
`resolve some or all of them.
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`5
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`Case 7:21-cv-00006-O Document 43 Filed 01/26/21 Page 6 of 6 PageID 579Case 7:21-cv-00006-O Document 43 Filed 01/26/21 Page 6 of 6 PageID 579
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`to the granting of the Rolling Plains motion, this case is TRANSFERRED to the U. S.
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`District Court for the Northern District of Texas for all further proceedings.
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`IT IS SO ORDERED.
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`Dated this 26th day of January, 2020.
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`6
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