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Cho v. JS Autoworld 1 Ltd.

United States District Court, E.D. New York

April 9, 2015

WENDY W. CHO and others similarly situated, Plaintiff,
v.
JS AUTOWORLD 1 LTD d/b/a ATLANTIC TOYOTA, JS AUTOWORLD LLC d/b/a ATLANTIC TOYOTA, ATLANTIC TOYOTA, TOYOTA MOTOR NORTH AMERICA, INC., TOYOTA MOTOR SALES, U.S.A., INC., TOYOTA FINANCIAL SERVICES AMERICAS CORPORATION, TOYOTA MOTOR CREDIT CORPORATION, TOYOTA FINANCIAL SERVICES CORPORATION, and TOYOTA MOTOR CORPORATION, Defendants

For the Plaintiff: Brooks Taylor, Esq., Of Counsel, Galarza & Taylor Law PC, Massapequa Park, NY.

For Toyota Motor North America, Inc.; Toyota Motor Sales, U.S.A., Inc.; Toyota Financial Services Americas Corporation; Toyota Motor Credit Corporation; and Toyota Motor Corporation, Defendants: Casey D. Laffey, Esq., Samuel Kadosh, Esq., Of Counsel, Reed Smith LLP, New York, NY.

For JS Autoworld 1 Ltd. d/b/a Atlantic Toyota; JS Autoworld LLC d/b/a Atlantic Toyota; and Atlantic Toyota, Defendants: Anthony C. Xanthakis, Esq., Steven F. Granville, Esq., Of Counsel, Galvano & Xanthakis PC, New York, NY.

NO APPEARANCES: The Defendants Toyota Financial Service Corporation and Toyota Motor Corporation.

Page 352

DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

On October 3, 2014, the Plaintiff Wendy W. Cho (the " Plaintiff) and " others similarly situated" commenced this action against the Defendants JS Autoworld 1 Ltd. d/b/a Atlantic Toyota; JS Autoworld LLC d/b/a Atlantic Toyota; Atlantic Toyota; Toyota Motor North America, Inc.; Toyota Motor Sales, U.S.A., Inc.; Toyota Financial Services Americas Corporation; Toyota Motor Credit Corporation; Toyota Financial Services Corporation; and Toyota Motor Corporation. The Plaintiff raises claims for fraud, violations of New York General Business Law § § 349 and 350, the federal Truth in Lending Act (" TILA" ), 15 U.S.C. § § 1601 et seq.; and Federal Reserve Board Regulation Z, 12 C.F.R. § 226, promulgated pursuant thereto. The Plaintiff seeks actual damages, statutory damages, attorneys' fees, and costs.

On December 31, 2014, the Defendants JS Autoworld LLC d/b/a Atlantic Toyota and Atlantic Toyota (" Atlantic Toyota" ) moved pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(b)(6) to dismiss the complaint against them based on an arbitration agreement or, in the alternative, pursuant to the Federal Arbitration Act (the " FAA" ), 9 U.S.C. § § 3, 4 to compel arbitration of the claims against them and to stay the litigation pending such arbitration.

Also, on December 31, 2014, the Defendants Toyota Motor Sales U.S.A., Inc., Toyota Motor North America, Inc., Toyota Financial Services Americas Corporation, and Toyota Motor Credit Corporation (the " Toyota Motor" Defendants" ), but not the Defendants Toyota Financial Service Corporation and Toyota Motor Corporation, moved pursuant to Sections 3 and 4 of the FAA to compel to compel arbitration of the claims against them and to stay the litigation pending such arbitration.

Page 353

On March 11, 2015, the Clerk of the Court noted the default of the Defendant JS Autoworld 1 Ltd. d/b/a Atlantic Toyota.

On March 30, 2015, the Plaintiff moved pursuant to Fed.R.Civ.P. 4(d)(2) for (1) expenses incurred in making service on defaulting Defendant, JS Autoworld 1 Ltd., for failing to respond to a waiver of service and (2) reasonable expenses, including attorneys' fees, in connection with the motion.

For the reasons set forth, the motions to dismiss and/or to arbitrate are granted in part and denied in part and the Rule 4(d)(2) motion is granted.

I. BACKGROUND

Unless stated otherwise, for purposes of the motions to dismiss and/or arbitrate, the following factual allegations are drawn from the complaint and construed in a light most favorable to the non-moving party, the Plaintiff. A. The Parties and Non-Parties

The Plaintiff is an individual who at all relevant times resided in Massapequa, New York.

Upon information and belief, the Defendant-in-default, JS Autoworld 1 Ltd. d/b/a Atlantic Toyota, is a New York corporation with a place of business at 200 Sunrise Highway in Amityville, New York.

Upon information and belief, JS Autoworld LLC d/b/a Atlantic Toyota is a New York corporation with a place of business also at 200 Sunrise Highway in Amityville, New York.

Upon information and belief, these corporations buy and sell new and used automobiles through the internet and provide credit to persons to do consummate such purchases.

Upon information and belief, Toyota Motor Corporation is a Japanese corporation regularly engaged in the business of automobile manufacturing.

Upon information and belief, Toyota Financial Services Corporation is a Japanese corporation regularly engaged in the business of financial services in New York State.

Upon information and belief, Toyota Financial Services Corporation is a wholly-owned subsidiary of Toyota Motor Corporation.

Upon information and belief, Toyota Financial Services Americas Corporation is a California corporation that provides personal consumer credit in the United States.

Upon information and belief, Toyota Motor Credit Corporation is a California corporation regularly engaged in the business of providing consumer loans in New York State. and a wholly-owned subsidiary of Toyota Financial Services Americas Corporation.

Upon information and belief, Toyota Motor Sales, U.S.A., Inc. is a California corporation regularly engaged in the business of manufacture and distribution of Toyota automobiles; selling Toyota vehicles to Toyota dealerships; and marketing Toyota vehicles and Toyota financial services to the public at large. Upon information and belief, Toyota Motor Sales, U.S.A., Inc. is a wholly-owned subsidiary of Toyota Motor North America, Inc.

Toyota Motor North America, Inc. is a California corporation and a holding company of Toyota Motor Corporation.

The non-party Frank Wilson (" Wilson" ) was at all relevant times an employee and agent of Atlantic Toyota.

The non-party John Morgan (" Morgan" ) was at all relevant times an employee and agent of ...


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