The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANDREW BEISSEL, an individual; )
J&B ENTERPRISES, INC., a Colorado )
Corporation, individually and on behalf )
of all others similarly situated, )
)
Plaintiffs, )
)
v. ) No. CIV-21-903-R
)
WESTERN FLYER EXPRESS, LLC, )
an Oklahoma Limited Liability Company, )
)
Defendants. )
ORDER
Before the Court is the Motion to Dismiss filed by Defendant Western Flyer
Express, LLC pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. No. 24).1 Plaintiffs responded in
opposition to the motion and Defendants filed a reply in support of their position. (Doc.
Nos. 26 and 27). Upon consideration of the parties’ submissions, the Court finds as follows:
the Court GRANTS Defendant’s Motion to Dismiss and grants Plaintiffs leave to amend
their Complaint.
Plaintiffs allege Defendant undertook a deceptive, three-phase program to lure
unsuspecting truck operators into “purchasing” a “driving opportunity” whereby the
drivers would work as contractors for Defendant while paying off a lease-to-purchase
tractor-trailer over a two-year period. Doc. No. 2, ¶¶ 1, 16, 18. Phase one allegedly was an
1 The Northern District of Oklahoma disposed of Defendant’s Motion to Dismiss due to forum non conveniens and
motion to change venue by transferring the case to this Court. See Doc. No. 31. In the instant case, the only issue at
bar is Defendant’s Motion to Dismiss Plaintiffs’ Oklahoma Deceptive Trade Practices Act claim.
advertising and recruiting blitz across online job boards, social media, direct advertising
on Defendant’s website, and the use of direct and third-party recruiters. Id. ¶ 17. The
advertising lured drivers by offering at least $1115 a week, driving as many miles as they
wanted, and the opportunity to own their own truck in twenty-four months. Id. ¶ 18. Phase
two allegedly involved bringing potential drivers into Defendant’s Oklahoma headquarters
to further sell operators on the benefits of the driving opportunity. Id. ¶ 25. The final phase
involved drivers “purchasing the Driving Opportunity” by signing an “Independent
Contractor Agreement” and a “Vehicle Lease Agreement,” then allegedly “bilk[ing]”
drivers out of their labor to undercut rivals. Id ¶¶ 2, 16, 33.
Plaintiffs claim Defendant knew at the time it made its representations that they
were false and misleading. Id. ¶¶ 24, 28–31. It also allegedly omitted vital information such
as a driver turnover rate of “over 100% annually,” much lower actual take-home pay, and
higher driver costs. Id. ¶¶ 30–31. The alleged goal of the plot was for Defendant to undercut
rival shippers in the marketplace and intentionally leave drivers like Plaintiff Beissel
bearing the cost. Id. ¶ 33. Based on this alleged abusive scheme, Plaintiffs sued on behalf
of themselves and similarly situated drivers in the Northern District of Oklahoma claiming
deceptive and unfair trade practices under the Oklahoma Consumer Protection Act, Okla.
Stat. tit. 15 §§ 751 et seq., deceptive trade practices under the Oklahoma Deceptive Trade
Practices Act (ODTPA), Okla. Stat. tit. 78 §§ 52 et seq., common law actual and
constructive fraud, and common law negligence per se. Id. The instant motion addresses
the ODTPA claim.
In considering a Motion to Dismiss under Rule 12(b)(6), the Court must determine
whether a plaintiff has stated a claim upon which relief may be granted. The Court grants
the Motion when the Complaint provides no “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). The Complaint must contain enough “facts to state a claim to relief
that is plausible on its face” [id. at 570], and the factual allegations “must be enough to
raise a right to relief above the speculative level.” Id. at 555 (citations omitted). The Court
must accept all the well-pled allegations of the Complaint as true and must construe the
allegations in the light most favorable to Plaintiff. Id.; Alvarado v. KOB–TV, L.L.C., 493
F.3d 1210, 1215 (10th Cir. 2007). However, the Court does not accept as true those
allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cnty. Comm’rs,
263 F.3d 1151, 1154–55 (10th Cir. 2001). “[C]onclusory allegations without supporting
factual averments are insufficient to state a claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1109–10 (10th Cir. 1991).
Defendant argues that the ODTPA does not provide consumers a private right of
action. Doc. 24 at 17–19. Plaintiffs counter that as independent trucking contractors, they
are in competition with Defendant—a trucking company. Doc. No. 26 at 7–8. As stated in
Conatzer v. American Mercury Insurance Co., 15 P.3d 1252, 1254 (Okla. Civ. App. 2000):
“It has been definitively established that [the Deceptive Trade Practices Acts] protect[s]
competing business interests and do[es] not present a basis for suit by consumers.” Judge
Friot from this District has also found the ODTPA provides no private right of action to
consumers, only competitors. See Thomas v. Metropolitan Life Ins. Co., 540 F. Supp. 2d
1212, 1228 (W.D. Okla. 2008).
On the face of the Complaint, the underlying contract looks like a consumer
contract. Plaintiffs leased-to-purchase a tractor-trailer and served as independent
contractors for Defendant as part of paying off the lease-to-purchase agreement. Plaintiffs
themselves even call the arrangement a “purchase” in their Complaint. Plaintiffs argue that
as independent contractors they lost out of potential competing opportunities by engaging
in the alleged scam. However, their Complaint makes no mention of lost competing
business opportunities or contracts as a result in participating in Defendant’s program, nor
does it describe how purchasing the driving opportunity led to such losses. The Court
concludes this argument fails without additional facts that make a competition claim
plausible.
For the reasons stated above, Defendants’ Motion to Dismiss is GRANTED.
Plaintiffs are granted to leave amend their Complaint within 14 days of the date of this
Order.
IT IS SO ORDERED on this 1 day of October 2021.
UNITED STATES DISTRICT JUDGE