United States District Court, W.D. North Carolina, Charlotte Division
LISA MORRIS, MICHAEL BUI, and TUMIKA WILLIAMS on behalf of themselves and all others similarly situated, Plaintiffs,
BANK OF AMERICA, N.A., Defendant.
MEMORANDUM AND RECOMMENDATION
S. Cayer United States Magistrate Judge.
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.
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.
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.
PROCEDURAL AND FACTUAL BACKGROUND
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,  (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.
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.
has moved to dismiss the Second Amended Complaint.
Standard of Review
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.”
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
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)).