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Morris v. Bank of America, N.A.

United States District Court, W.D. North Carolina, Charlotte Division

January 7, 2019

LISA MORRIS, MICHAEL BUI, and TUMIKA WILLIAMS on behalf of themselves and all others similarly situated, Plaintiffs,
BANK OF AMERICA, N.A., Defendant.


          David S. Cayer United States Magistrate Judge.

         THIS MATTER is before the Court on “Defendant Bank of America, N.A.'s Motion to Dismiss Plaintiffs' Second Amended Complaint” (document #22) and the parties' briefs and exhibits.

         This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1), and this Motion is now ripe for consideration.

         Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that Defendant's Motion to Dismiss be granted in part and denied in part, as discussed below.


         Taking the facts of the Second Amended Complaint as true, Plaintiffs maintain checking and/or savings accounts with Defendant through banking centers in Oklahoma, California, and Georgia. Plaintiffs contend that Defendant improperly assessed fees on their accounts by (i) charging multiple non-sufficient funds (“NSF”) fees and/or overdraft (“OD”) fees for the same transaction, [1] (ii) charging NSF/OD fees on payments from one Defendant account to another, (iii) prematurely deducting NSF/OD fees, and (iv) assessing monthly account service fees (“MSAS”) on savings accounts that should have been waived. As a result, Plaintiffs allege that Defendant breached various “contracts and reasonable consumer expectations.” The essence of Plaintiffs' allegations is that Defendant breached the express terms of the relevant contractual provisions as well as its duty to exercise good faith in applying them when determining the number of times it would submit items for payment, the timing of those submissions, and whether to charge NSF/OD/MSAS fees. Plaintiffs allege that Defendant structured these submissions in a such a way as to to maximize fees paid by them.

         On March 29, 2018, Plaintiffs filed this action on behalf of themselves and all others similarly situated. The Second Amended Complaint alleges claims for breach of contract, breach of the covenant of good faith and fair dealing, conversion, unjust enrichment, and unfair and deceptive trade practices in violation of North Carolina's Unfair and Deceptive Trade Practices Act (“UDTPA”) N.C. Gen. Stat. § 75.1.-1, Oklahoma's Consumer Protection Act (“OCPA”) Okla. Stat. tit. 15 § § 752(13), 753(20), California's Unfair Competition Law (“UCL”), California Business and Professions Code section 17200, et. seq., and Georgia's Consumer Protection Act (“OCGA”) O.C.G.A. Sections 10-1-390 et. seq.

         Defendant has moved to dismiss the Second Amended Complaint.


         A. Standard of Review

         In reviewing a Rule 12(b)(6) motion, “the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 563. A complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         In Iqbal, the Supreme Court articulated a two-step process for determining whether a complaint meets this plausibility standard. First, the court identifies allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555) (allegation that government officials adopted challenged policy “because of” its adverse effects on protected group was conclusory and not assumed to be true). Although the pleading requirements stated in “Rule 8 [of the Federal Rules of Civil Procedure] mark[] a notable and generous departure from the hyper-technical, code-pleading regime of a prior era ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79.

         Second, to the extent there are well-pleaded factual allegations, the court should assume their truth and then determine whether they plausibly give rise to an entitlement to relief. Id. at 679. “Determining whether a complaint contains sufficient facts to state a plausible claim for relief “will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.. “Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief, '” and therefore should be dismissed. Id. (quoting Fed.R.Civ.P. 8(a)(2)).

         B. Breac ...

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