Wiggins v. Bank of Am.

• Decision Date: 21 September 2020
• Docket Number: Case No. 2:19-cv-3223
• Parties: Kelsea D. WIGGINS, et al., Plaintiffs, v. BANK OF AMERICA, NORTH AMERICA, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

488 F.Supp.3d 611

Kelsea D. WIGGINS, et al., Plaintiffs,

v.BANK OF AMERICA, NORTH AMERICA, et al., Defendants.

Case No. 2:19-cv-3223

United States District Court, S.D. Ohio, Eastern Division.

Signed September 21, 2020

Filed September 22, 2020

Frank S. Hedin, Pro Hac Vice, Miami, FL, Henry J. Kelston, Pro Hac Vice, Robert R. Ahdoot, Pro Hac Vice, Los Angeles, CA, John Mark Haseley, O'Connor, Haseley & Wilhelm, Columbus, OH, for Plaintiffs.

Christie A. Moore, Bingham Greenebaum Doll LLP, Louisville, KY, Joanna C. Wade, Pro Hac Vice, Kobi Kennedy Brinson, Pro Hac Vice, Winston & Strawn LLP, Charlotte, NC, Ross J. Corbett, Pro Hac Vice, Ryan Dunigan, Pro Hac Vice, Winston & Strawn LLP, Chicago, IL, for Defendants.

OPINION AND ORDER

EDMUND A. SARGUS, JR., UNITED STATES DISTRICT JUDGE

The matters before the Court are Defendants’ Bank of America, North America ("BANA") and Bank of America Corporation ("BAC") (collectively "Defendants") Motion to Dismiss and Strike Plaintiff's Complaint (ECF No. 11) and Motion for Oral Argument to Motion to Dismiss and Strike Plaintiff's Complaint (ECF No. 65). The motions are ripe for review. For the following reasons, the Motion to Dismiss and Strike the Plaintiff's Complaint (ECF No. 11) is GRANTED in part and DENIED in part and the Motion for Oral Argument to Motion to Dismiss and Strike (ECF No. 65) is DENIED .

I.

Plaintiffs Kelsea D. Wiggins, Cristian A. Portillo II, and Jonathan Mull (collectively "Plaintiffs") filed this suit against Defendants on July 25, 2019. (See Compl., ECF No. 1.) As this matter is before the Court on Defendants’ Motion to Dismiss, the allegations in the Complaint are taken as true and are as follows.

Plaintiff Wiggins is a resident of Ohio, Plaintiff Portillo is a resident of Texas, and Plaintiff Mull is a resident of Washington. (Id. ¶¶ 8–10.) Defendants are Delaware corporations which maintain their principal places of business in North Carolina. (Id. ¶ 11.) Defendants provide retail banking products and services including personal checking accounts and debit cards. (Id. ) Plaintiffs maintained personal checking accounts with Defendants. (Id. )

Defendants’ "relationship with Plaintiffs ... [is] governed by a standardized set of contractual documents comprised of ‘Deposit Agreement and Disclosures’ and the incorporated ‘Personal Schedule of Fees’ " (the "Deposit Agreement.") (Id. ¶ 2.) With respect to overdraft fees, the Deposit Agreement states in pertinent part:

We pay overdrafts at our discretion, which means we do not guarantee that we will always, or ever, authorize and pay them. If we overdraw your account to pay items on one or more occasions, we are not obligated to continue paying future insufficient funds items. We may pay all, some or none of your overdrafts, without notice to you. If we do not authorize and pay an overdraft, then we decline or return the transaction unpaid.

The Schedule of Fees for your account explains when we charge you fees for overdrafts and for declines or returned items and the dollar amount of the fees. Please review the Schedule of Fees for your account carefully.

(Compl. Ex. A at 17.) The Schedule of Fees sets the overdraft fee at $35.00. (Id. Ex. B at 14.)

Plaintiff Wiggins alleges that on December 7, 2015, an electronic transaction from "ActiveHours Inc." was posted to her checking account in the amount of $0.04. (Id. ¶ 24.) Additionally, an electronic deposit was posted to her checking account in the amount of $0.06. (Id. ) Defendants assessed a $35.00 overdraft fee to Plaintiff Wiggins's checking account. (Id. ) Similarly, Plaintiff Portillo alleges that on September 19, 2017, an electronic transaction from "Square Inc." was posted to his checking account in the amount of $0.01 and an electronic deposit transaction was posted to his checking account in the amount of $0.01. (Id. ¶ 23.) As a result, Defendants assessed a $35.00 overdraft fee. (Id. ) Finally, Plaintiff Mull alleges that on April 5, 2018, an electronic transaction from "Gasbuddy" was posted to his checking account in the amount of $0.01 and an electronic deposit was posted to his checking account in the amount of $0.01. (Id. ¶ 22.) Defendants assessed a $35.00 overdraft fee to Plaintiff Mull's checking account as a result. (Id. ) Plaintiffs allege that on November 2, 2018, Defendants modified the Deposit Agreement to eliminate overdrafts triggered by transactions of $1.00 or less. (Id. ¶ 25.)

Plaintiffs seek to bring this action on behalf of themselves and those similarly situated through Federal Rule of Civil Procedure 23. (Id. ¶ 27.) Plaintiffs bring four claims against Defendants: (1) breach of the covenant of good faith and fair dealing; (2) unconscionability; (3) conversion; and (4) unjust enrichment. (Id. ¶¶ 38–71.) Plaintiffs ask for a declaration that Defendants’ overdraft fee assessment is wrongful, unfair, unconscionable, and a breach of the covenant of good faith and fair dealing, restitution, and damages. (See id. at 17.)

Defendants move to dismiss the claims against them under Federal Rule of Civil Procedure 12(b)(2) for a lack of personal jurisdiction and 12(b)(6) for a failure to state a claim upon which relief can be granted. Defendants have also asked for an oral argument.

II.

Defendants have asked for an oral argument in support of their motion to dismiss. (ECF No. 65.) The Court finds that oral argument is not deemed essential to a fair resolution of the case and thus, DENIES the motion. See S.D. Ohio Civ. R. 7.1(a), (b)(2) ("[T]he determination of all motions ... shall be based upon memoranda filed pursuant to S.D. Ohio Civ. R. 7.2 and without oral hearings," unless "oral argument is deemed to be essential to the fair resolution of the case.").

III.

Rule 12(b)(2) provides for dismissal of an action where the district court lacks personal jurisdiction over the defendant. District courts have discretion to decide questions of personal jurisdiction using the pleadings, permitting discovery in aid of deciding the motion, or conducting an evidentiary hearing to resolve factual questions. Res. Inst. at Nationwide Children's Hosp. v. Trellis Bioscience, LLC , No. 2:15-cv-3032, 2016 WL 5791194, at *3, 2016 U.S. Dist. LEXIS 136309, at *8 (S.D. Ohio Sept. 30, 2016). Plaintiffs bear the burden of establishing personal jurisdiction. Am. Greetings Corp. v. Cohn , 839 F.2d 1164, 1168 (6th Cir. 1988). When personal jurisdiction is decided "solely on written submissions, the plaintiff's burden is ‘relatively slight.’ " Res. Inst. , 2016 WL 5791194 at *3, 2016 U.S. Dist. LEXIS 136309 at *8–9 (citing id. ). The plaintiff must, "by affidavit or otherwise, set forth specific facts showing that the court has jurisdiction." Theunissen v. Matthews , 935 F.2d 1454, 1458 (6th Cir. 1991). "The [C]ourt must view all of the pleadings and affidavits in a light most favorable to the plaintiff, and to defeat dismissal, the plaintiff need only make a prima facie case showing that personal jurisdiction exists." Am. Greetings Corp. , 839 F.2d at 1168 ; see also Theunissen , 935 F.2d at 1458 ("Where the court relies solely on the parties’ affidavits to reach its decision, the plaintiff must make only a prima facie showing that personal jurisdiction exists in order to defeat dismissal."). The Sixth Circuit adopted this rule "in order to prevent non-resident defendants from regularly avoiding personal jurisdiction simply by filing an affidavit denying all jurisdictional facts." Theunissen , 935 F.2d at 1458.

In a diversity case, "[t]o determine whether personal jurisdiction exists over a defendant, Federal Courts apply the law of the forum state, subject to the limits of the Due Process Clause of the Fourteenth Amendment." CompuServe Inc. v. Patterson , 89 F.3d 1257, 1262 (6th Cir. 1996) ; see also Theunissen , 935 F.2d at 1459 ("A federal district court sitting in diversity must apply the law of the forum state to determine whether it may exercise jurisdiction over the person of a non-resident defendant."). There are two categories of personal jurisdiction: general personal jurisdiction and specific personal jurisdiction. See First Franchise Capital Corp. v. Jack in the Box Inc. , No. 1:17-cv-397, 2017 WL 3269260, at *16, 2017 U.S. Dist. LEXIS 120324, at *46 (S.D. Ohio Aug. 1, 2017) (citing Daimler AG v. Bauman, U.S. , 571 U.S. 117, 118, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) ). "Ohio law does not recognize general jurisdiction over a non-resident defendant." JM-Nipponkoa Ins. Co. v. Dove Transp. LLC, No. 1:14-cv-202, 2015 WL 145041, at *3, 2015 U.S. Dist. LEXIS 3081, at *7 (S.D. Ohio Jan. 12, 2015). Thus, Defendants must be amenable to suit through specific jurisdiction under Ohio's long-arm statute and the requirements of the Due Process Clause must be met. See id.

Ohio Revised Code § 2307.382 provides for when a court may exercise jurisdiction over a defendant and includes when the defendant "[t]ransact[s] any business in [Ohio]." Id. at § 2307.382(a)(1). Ohio courts interpret this section broadly. First Franchise , 2017 WL 3269260 at *9, 2017 U.S. Dist. LEXIS 120324 at *27. In order to satisfy this section, the defendant must "do some act or consummate some transaction within the forum."

Imwalle v. Reliance Med. Prods. , No. 1:17-cv-397, 2005 WL 2277426, at *3, 2005 U.S. Dist. LEXIS 50526, at *8 (S.D. Ohio Sept. 19, 2005). If the defendant reaches out to the plaintiff in the forum state to create a business relationship, the defendant transacts business in the forum state. Paglioni & Assocs. v. WinnerComm, Inc. , No. 2:06-cv-276, 2007 WL 852055, at *9, 2007 U.S. Dist. LEXIS 18612, at *25 (S.D. Ohio Mar. 16, 2007).

The Court examines the Due Process Clause "recognizing that a defect of this type would foreclose the exercise of personal jurisdiction even where a properly construed provision of the long-arm statute would otherwise permit it." Theunissen , 935 F.2d at 1459. "[T]he crucial federal constitutional inquiry is whether, given the facts of the case, the nonresident ...