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, and Opening Brief in Support filed by
Defendant Western Flyer Express, LLC pursuant to Fed. R. Civ. P. 12(b)(6). Doc. No. 41.
Defendant seeks to dismiss Plaintiffs’ second claim for relief based on the Oklahoma
Deceptive Trade Practices Act, 78 O.S. §§ 51 et seq. (“ODTPA”). Plaintiffs responded in
opposition to the motion and Defendants filed a reply in support of their position. Doc.
Nos. 54 and 56. Upon consideration of the parties’ submissions, the Court GRANTS
Defendant’s Motion to Dismiss.
In their Amended Class Action Complaint (“Amended Complaint”) [Doc. No. 37],
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. 37, ¶¶ 1, 16, 18. Phase one allegedly was
an 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, 32, 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 Western District of Oklahoma claiming
deceptive and unfair trade practices under the Oklahoma Consumer Protection Act, 15 O.S.
§§ 751 et seq., deceptive trade practices under ODTPA, common law actual and
constructive fraud, and common law negligence per se. Id. In an earlier order, the Court
dismissed the ODTPA claim because it failed to plead particularized facts demonstrating
Plaintiffs lost “competing business opportunities or contracts as a result of participating in
Defendant’s program, [or] how purchasing the driving opportunity led to such losses.” Doc.
No. 36 at 4. Following the Court’s order, Plaintiffs filed their Amended Complaint in which
they plead that as independent contractors who signed the lease-to-purchase agreements,
the drivers lost the opportunity to operate for other carriers. Doc. No. 37 ¶ 57. Plaintiffs
further plead that had they had such an opportunity to drive for other carriers, the Plaintiffs
would effectively be Defendant’s competitors. Id. In sum, Plaintiffs ODTPA claim in the
Amended Complaint is that Defendant’s alleged scheme effectively restrained Plaintiffs’
ability to operate as independent contractors. Id. Defendant subsequently filed the instant
motion, arguing Plaintiffs have failed to plead sufficient facts to demonstrate they are
competitors as required pursuant to the ODTPA.
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 Amended 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). A 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 Amended Complaint as true and must
construe the allegations in the light most favorable to Plaintiffs. 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).
As the Court found in its prior order, “[i]t has been definitively established that [the
ODTPA] protect[s] competing business interests and do[es] not present a basis for suit by
consumers.” Conatzer v. American Mercury Insurance Co., 15 P.3d 1252, 1254 (Okla. Civ.
App. 2000). The ODTPA thus provides a private right of action only to competitors. See
Thomas v. Metropolitan Life Ins. Co., 540 F. Supp. 2d 1212, 1228 (W.D. Okla. 2008). In
its prior order, the Court held that Plaintiffs had failed to make a plausible showing that
they were in competition with Defendant, and it granted Plaintiffs leave to amend so they
could plead the necessary facts for an ODTPA claim. Doc. No. 36 at 4. However, the new
allegations in Plaintiffs’ Amended Complaint are conclusory in nature and insufficient to
demonstrate that Plaintiffs were plausibly competing with the Defendant at the time they
agreed to the vehicle lease and independent contractor agreements.
Plaintiffs plead that as independent contractors they could have worked for
competing companies or attempted to go into business on their own, but lost these
opportunities because Defendant fraudulently locked them into the lease-to-purchase
scheme. Doc. No. 37 at 22. They plead no specific facts that plausibly show that Plaintiffs
were in competition with Defendant at the time they agreed to participate in the driving
opportunity. As cited in the standard above, “conclusory allegations without supporting
factual averments are insufficient to state a claim upon which relief can be based.” Hall,
935 F.2d at 1109–10. In short, Plaintiffs have failed to articulate the necessary facts that
would plausibly demonstrate they were in competition with Defendant. Therefore, they
have failed to plead a claim pursuant to the ODTPA.
For the reasons stated above, Defendants’ Motion to Dismiss is GRANTED.
IT IS SO ORDERED on this 14th day of December 2021.
DAVID L. RUSSELL
UNITED STATES DISTRICT JUDGE