Se. Constr. Servs., LLC v. Wells Fargo Bank, N.A.
| Decision Date | 17 March 2015 |
| Docket Number | CASE NO. 8:14-CV-1565-T-17AEP |
| Parties | SOUTHEAST CONSTRUCTION SERVICES, LLC, Plaintiff, v. WELLS FARGO BANK, N.A., and HUSTON TRIPP, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This cause is before the Court on:
Motion to Dismiss Amended Complaint
Response in Opposition
Plaintiff's Amended Complaint (Dkt. 9) includes the following:
Count I
Negligence
Wells Fargo and Tripp
Count II
Conversion
Wells Fargo
Count III
Negligence
Defendants Wells Fargo Bank, N.A. and Huston Tripp move to dismiss the Amended Complaint with prejudice.
Plaintiff Southeast Construction Services, LLC ("Southeast") opposes the Motion.
"Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." "[D]etailed factual allegations" are not required, Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), but the Rule does call for sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face," Id., at 570. A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. Two working principles underlie Twombly, First, the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements, Id., at 555. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense. Id., at 556. A court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the complaint's framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1955-1956 (2009)(quotinq Bell Atlantic v. Twombly, 550 U.S. 544 (2007).
The Court limits its consideration to well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed. La Grasta v.First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). The Court may consider documents which are central to plaintiff's claim whose authenticity is not challenged, whether the document is physically attached to the complaint or not, without converting the motion into one for summary judgment. Speaker v. U.S. Dept of Health and Human Services Centers for Disease Control and Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010); SFM Holdings, Ltd. v. Banc of America Securities, LLC, 600 F.3d 1334, 1337 (11th Cir. 2010); Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005); Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 n. 3 (11th Cir. 2005).
Under the Federal Rules of Civil Procedure, exhibits to a pleading are part of the pleading "for all purposes." Fed. R. Civ. P. 10(c): see Solis-Ramirez v. U.S. Department of Justice, 758 F.2d 1426, 1430 (11th Cir.1985) (per curiam) ().
When the exhibits contradict the general and conclusory allegations of the pleading, the exhibits govern. See Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974) ( ; Simmons v. Peavey Welsh Lumber Co., 113 F.2d 812, 813 (5th Cir. 1940)("Where there is a conflict between allegations in a pleading and exhibits thereto, it is well settled that the exhibits control.").
Defendants seek the dismissal of Counts I and III with prejudice, as Plaintiff Southeast Construction Services, LLC has not and cannot allege that Plaintiff was a customer of Defendant Wells Fargo, to whom Defendants owed a duty of care recognized by Florida law.
Count I is premised on the duty to exercise reasonable care in permitting Stephen Swafford to open a checking account, and the duty to exercise reasonable care not to allow the deposit of checks payable to Plaintiff Southeast into the Wells Fargo Account, by confirming that the fictitious name was registered, or by establishing policies and procedures to confirm that a fictitious name was registered. Plaintiff further alleges that Defendant Wells Fargo Bank, N.A. did not properly verify the customer's identity.
Count III is premised on the alleged failure to require a proper indorsement, and failure to exercise ordinary care and good faith in allowing a deposit of checks intended to pay Plaintiff Southeast Construction Services, LLC and delivered to the Plaintiff's Post Office Box or principal address into the account of Southeast Construction Services of America, Inc. opened by Stephen Swafford at Wells Fargo Bank, N.A. Plaintiff Southeast alleges the above actions constitute common law negligence.
Count I is directed to Defendants Wells Fargo Bank, N.A. and Huston Tripp. Count III is directed only to Defendant Wells Fargo.
In the Amended Complaint, Plaintiff alleges that on February 24, 2011, Stephen Swafford opened an account with Wells Fargo Bank, N.A. for Swafford's company, Southeast Construction Services of America, Inc. The name on the signature card was "Southeast Construction Services." Stephen Swafford and Southeast Construction Services of America, Inc. became Defendant Wells Fargo Bank, N.A.'s customer at that time. Plaintiff does not allege that Plaintiff Southeast Construction Services, LLC was a customer of Wells Fargo Bank, N.A., only that Plaintiff was the payee on checks that were deposited in the account opened by Stephen Swafford.
Defendants argue that Plaintiff Southeast Construction Services, LLC was not Wells Fargo's customer with respect to the account. Therefore, neither Defendant owes a duty to Plaintiff as a matter of law. Sroka v. Compass Bank, 2006 WL 2535656 (Fla. Cir. Ct. 4th Cir. August 31, 2006)(citing Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220(4th Cir. 2002)(no duty of care to a non-customer with whom the bank has no direct relationship; dismissing Complaint with prejudice).
Plaintiff Southeast Construction Services, LLC responds that, by allowing Swafford to open an account under the name of Southeast Construction Services, and then allowing Swafford to deposit checks payable to Southeast Construction Services, LLC, Defendants made Plaintiff a customer, and therefore owe Plaintiff a duty of reasonable care.
In the Amended Complaint, Plaintiff alleges that Defendants did not take reasonable precautions prior to allowing Stephen Swafford to open an account, and did not require proper indorsement at the time the checks were deposited, that Defendant had a duty to exercise reasonable care in permitting Stephen Swafford to open a checking account, and that Defendants owed Plaintiff a duty of reasonable care not toallow the deposit of checks payable to Plaintiff into the Wells Fargo account, by confirming that the fictitious name was registered, or by establishing policies and procedures to confirm that a fictitious name was registered. Plaintiff further alleges that Defendants did not confirm that "Southeast Construction Services" was in fact a fictitious name registered to Stephen Swafford or his company, Southeast Construction Services of America, Inc.
Under Florida law, the existence of a duty to the injured party is one of the four elements of a claim for negligence. Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1217 (Fla. 2010). "Establishing the existence of a duty under our negligence law is a minimum threshold legal requirement that opens the courthouse doors to the moving party, and is ultimately a question of law for the court rather than a jury. Williams v. Davis, 974 So.2d 1052, 1057 (Fla. 2007).
Plaintiff Southeast named Huston Tripp, bank employee, as a defendant. The attachment to the Amended Complaint establishes that Tripp opened the account. In White v. Wal-Mart Stores, Inc., 918 So.2d 357, 358 (Fla. 1st DCA 2005), the Court states:
[O]fficers or agents of corporations may be individually liable in tort if they commit or participate in a tort even if their acts are within the course and scope of their employment. However, to establish liability, the complaining party must allege and prove that the officer or agent owed a duty to the complaining party, and that the duty was breached through personal (as opposed to technical or vicarious) fault...[A]n officer or agent may not be held personally liable simply because of his general administrative responsibility for performance of some function of his [or her] employment—he or she must be actively negligent. (Citations omitted).
In the Amended Complaint, Plaintiff Southeast does not allege the breach of Tripp's personal duty not to allow the deposit of checks payable to Plaintiff Southeast eachtime Stephen Swafford made a deposit into the account of Southeast Construction Services of America, Inc,...
To continue reading
Request your trial