United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING DEFENDANT'S MOTION TO
WALTON PRATT, JUDGE
matter is before the Court on a Motion to Dismiss filed
pursuant to Federal Rule of Civil Procedure 12(b)(3) by
Defendant Dohardmoney.com, doing business as Do Hard Money
(“DHM”) (Filing No. 12). Plaintiff Grace
Akinlemibola (“Akinlemibola”) filed this lawsuit
to bring various tort claims as well as a breach of contract
claim after her business relationship with DHM fell apart.
DHM moved to dismiss the action based on improper venue
because of an arbitration provision in the parties'
contract. For the following reasons, the Court
grants the Motion to Dismiss.
is an individual who lives in Brownsburg, Indiana. DHM is a
Utah corporation that is based out of West Jordan, Utah. DHM
is in the business of lending money for real estate ventures.
Akinlemibola began a real estate business through her
company, Grakin Corporation, and she wanted to use DHM as the
lender for her properties (Filing No. 1 at 2).
signing a written agreement with DHM, Akinlemibola received
assurances from DHM that she would be able to receive $1.25
million to help her with the cost of rehabilitating up to
five properties. DHM would provide up to $250, 000.00 for
each property. Id. A representative from DHM assured
Akinlemibola that after she paid the $3, 000.00 initial
start-up fee she would have immediate access to a number of
benefits offered by DHM. This included advice from senior
advisors, products and services on DHM's website, and a
tool (“Advanced Deal Analyzer”) that allowed
Akinlemibola to upload data about a property during or before
negotiations to determine whether DHM could finance the
prospective deal without Akinlemibola having to provide
additional funds at closing. Id. at 2-3.
Akinlemibola thought about the opportunity to obtain funding
and services from DHM and decided to pursue the opportunity.
She paid the $3, 000.00 initial start-up fee and, in August
2017, signed DHM's written contract. However, she did not
receive the amount of customer support that she would have
liked. Id. at 3; Filing No. 12-1 at 6.
paying the start-up fee and signing the contract,
Akinlemibola began the negotiation process to purchase a
property in Avon, Indiana, and asked to start the evaluation
process with DHM to ensure that the property would be funded
by DHM. She was told that the property needed to be under
contract before an evaluation could be undertaken. By the
time Akinlemibola was able to again contact the seller, the
property already had sold (Filing No. 1 at 3).
began negotiations on a different property in Crawfordsville,
Indiana. She was able to negotiate the purchase price down to
$200, 000.00, but the property needed repairs that would cost
$150, 000.00, which is more than DHM normally would lend for
a single property. Akinlemibola contacted DHM twice to seek
funding approval, but DHM never responded. The property
seller was wary of DHM's proof of funds letter and backed
out of negotiations with Akinlemibola. Id. at 3-4.
informed Akinlemibola that she could use the Advanced Deal
Analyzer tool to make sure specific properties could be
funded through DHM. Akinlemibola began researching other
properties and pursued a property in Indianapolis. She ran
the property through DHM's Advanced Deal Analyzer tool
and used various figures to determine what offer she could
make on the property without having to pay any of her own
funds. Using DHM's tool, she determined that she could
offer $77, 000.00 as the purchase price for the property.
Akinlemibola made an offer of $77, 000.00 to purchase the
property, and the next day, she learned that the seller would
not reject the offer. Id. at 4-5.
then tried to submit a loan application to DHM with the
figures she had uploaded into the Advanced Deal Analyzer
tool. However, the tool changed the amount of funding that
Akinlemibola would be able to receive, reducing the amount
available on a loan from $250, 000.00 to $140, 000.00, with
Akinlemibola paying $11, 000.00 out of her own pocket. She
immediately contacted DHM to ask why the figures had changed
from the day before. She provided the property address to
DHM, and she was told that only one Advanced Deal Analyzer
scenario was found in DHM's system, which gave the lower
loan amount. Without being able to obtain funding on the
property from DHM, Akinlemibola was unable to move forward
with purchasing the property. Id. at 5-6.
two months after signing the contract with DHM, on October
31, 2017, Akinlemibola filed her Complaint against DHM,
asserting claims for breach of contract, fraud, negligence,
promissory estoppel, and tortious interference with economic
advantage. Id. at 7-8. DHM then filed its Motion to
Dismiss, arguing improper venue based on an arbitration
clause in the parties' contract.
party moves for dismissal on the basis of improper venue
because of an arbitration clause, courts have determined that
Federal Rule of Civil Procedure 12(b)(3) is the appropriate
rule to apply. See Auto. Mechs. Local 701 Welfare &
Pension Funds v. Vanguard Car Rental USA, Inc., 502 F.3d
740, 746 (7th Cir. 2007).
considering a motion to dismiss, the district court
ordinarily assumes the truth of all well-pleaded allegations
in the plaintiff's complaint. But this rule is less
absolute when considering a motion to dismiss under Federal
Rule 12(b)(3) than under Rule 12(b)(6).” Deb v.
Sirva, Inc., 832 F.3d 800, 808-09 (7th Cir. 2016)
(citation omitted). “Under Rule 12(b)(3), which allows
for dismissal for improper venue, the district court assumes
the truth of the allegations in the plaintiff's
complaint, unless contradicted by the
defendant's affidavits.” Id. at 809.
“Rule 12(b)(3) is a somewhat unique context of
dismissal in that a court may look beyond the mere
allegations of a complaint, and need not view the allegations
of the complaint as the exclusive basis for its
decision.” Id. “It is appropriate, then,
for [the court] to consider the evidence submitted with the
motion.” Faulkenberg v. CB Tax Franchise Sys.,
LP, 637 F.3d 801, 810 (7th Cir. 2011). Furthermore,
“we have held that a motion to dismiss based on a
contractual arbitration clause is appropriately
conceptualized as an objection to venue, and hence properly
raised under Rule 12(b)(3).” Id. at 807
(citations and quotation marks omitted).
document filed pro se is to be liberally construed,
and a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.