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Ward v. Dickinson Financial Corp. Ii, Inc.

United States District Court, M.D. Georgia, Valdosta Division

March 9, 2015

LEE WARD, on behalf of himself, and all others similarly situated, Plaintiff,


HUGH LAWSON, Senior District Judge.

Before the Court are the following motions submitted by Defendants: (1) Motion to Dismiss Defendants Dickinson Financial Corporation II, Inc., Dickinson Financial Corporation, Armed Forces Bank, N.A., Armed Forces Bank of California, N.A., Academy Bank, N.A., and Southern Commerce Bank, N.A. (Doc. 31); (2) Motion to Dismiss Defendant SunBank, N.A. (Doc. 32); and (3) Motion to Dismiss Fiserv, Inc. (Doc. 30). The Court held a hearing on these motions on October 9, 2014. For the following reasons, Defendants' motions are granted.


Plaintiff Lee Ward, a citizen of the State of Arizona, opened a personal checking account ending in "0145" at SunBank, N.A. ("SunBank"), which is headquartered in Phoenix, Arizona and conducts business exclusively in Arizona, in June 2008. Ward alleges that during the life of this account, SunBank assessed numerous overdraft fees without proper notice to Ward and in violation of the Account Terms and Conditions ("Account Agreement") governing the account. (Doc. 22-1). Ward claims that while he knew that the bank would charge an overdraft fee when his account did not contain sufficient funds to cover a check, he was unaware that the same fees applied when he made transactions through use of his debit card either at an ATM machine or a point of sale without adequate funds to cover the purchases or withdrawals. He states that the bank knowingly approved these electronic transactions even though his account balance was deficient. Ward additionally alleges that SunBank charged overdraft fees on his deposits.

Ward was aware that the overdraft fees were being charged to his account. He admits that he "often challenged bank personnel about the fees." (Doc., ¶ 94). However, he claims that the bank employees were unable to explain the fees, though the bank did agree to refund some of the fees. (Doc. 22, ¶ 89). Ward avers that the bank's overdraft policies were less than transparent and created impediments to avoiding future fees even if the customer kept track of his account balance. He ultimately closed the checking account sometime in November 2010.

Ward, as representative of a putative class, now asserts state law claims for breach of contract, breach of the covenant of good faith and fair dealing, unconscionability, unjust enrichment, and conversion for alleged violations of his Account Agreement with SunBank against not only SunBank, but also against Dickinson Financial Corporation ("DFC"), a holding company for the other named bank defendants, Armed Forces Bank, N.A. ("AFB), Armed Forces Bank of California, N.A. ("AFBCA"), Academy Bank, N.A. ("Academy Bank"), and Southern Commerce Bank, N.A. ("Southern Commerce Bank"), and Dickinson Financial Corporation II, Inc. ("DFC II"), a registered multi-bank holding company that owns and controls DFC. Ward also contends that the banking Defendants collectively conspired with Defendant Fiserv, Inc. ("Fiserv"), a banking consultant, to maximize the accumulation of overdraft fee income by assessing improper fees against customers in violation of the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. §§ 1962(c) and (d).


Defendants move to dismiss Plaintiff's Complaint on numerous procedural and substantive grounds, putting into play three different potential standards of review: Rule 12(b)(1), Rule 12(b)(2), and Rule 12(b)(6).

A. Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to Rule 12(b)(2)

A Rule 12(b)(2) motion to dismiss attacks the district court's ability to assert jurisdiction over the defendant's person. Fed.R.Civ.P. 12(b)(2). Where a Rule 12(b)(2) motion to dismiss is decided without an evidentiary hearing, a Plaintiff seeking to exercise "personal jurisdiction of a nonresident defendant bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction." Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1257 (11th Cir. 2010) (quoting United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009)). A prima facie case is established if the plaintiff presents enough evidence to withstand a motion for directed verdict. Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000). The district court must accept as true the facts alleged in the complaint. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).

"A court without personal jurisdiction is powerless to take further action." Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 n.6 (11th Cir. 1999) (citing to Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir. 1963) (declaring that a court should decide a 12(b)(2) motion before a 12(b)(6) motion because "a court without [12(b)(2)] jurisdiction lacks power to dismiss a complaint for failure to state a claim")). Accordingly, the Court will address any pending issues of personal jurisdiction first.

B. Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Rule 12(b)(1)

A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The motion may be based upon either a facial or factual challenge to the complaint. McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). In the case of a facial attack, "the plaintiff is left with safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised." Id . (quoting Williams v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981)). The district court is required "merely to look and seek if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)).

When a Rule 12(b)(1) attack is factual, however,

the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction - its very power to hear the case - there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Id. (quoting Mortenson v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).

C. Motion to Dismiss for Failure to State a Claim Pursuant to Rule 12(b)(6)

When examining a motion to dismiss, the court shall accept "all well-pleaded facts... as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff." Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n. 1 (11th Cir. 1999). The court must dismiss the complaint if, "on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action." Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993) (citing Executive 100, Inc. v. Martin County, 992 F.2d 1536, 1539 (11th Cir. 1991) and Bell v. Hood, 327 U.S. 678, 682 (1946)). To avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The plaintiff is required to plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . While there is no probability requirement at the pleading stage, "something beyond... mere possibility... must be alleged." Twombly, 550 U.S. at 557 (citing Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005)). This standard "calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" of the defendant's liability. Id. at 556. Rule 12(b)(6) does not permit dismissal of a complaint "simply because it strikes a ...

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