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Deotare v. Wells Fargo Bank, N.A.

United States District Court, N.D. Georgia, Atlanta Division

March 26, 2018

WELLS FARGO BANK, N.A., Defendant.



         This matter is before the Court on Defendant Wells Fargo Bank, N.A.'s (“Wells Fargo”) Motion to Dismiss Plaintiffs' First Amended Complaint [15]; Plaintiffs Rajani T. Deotare, and Chandani V. Patel's (“Plaintiffs”) Motion to File Excess Pages [19]; and Plaintiffs' Motion to Strike Wells Fargo's Reply Brief [22].

         I. BACKGROUND

         A. Facts

         Plaintiffs allege that on or about November 8, 2014, Niveda Dave (“Ms. Dave”) borrowed $350, 000 from Plaintiffs to purchase property at a tax foreclosure sale. (Amended Complaint [13] (“Compl.”) ¶ 9). In return for the $350, 000, Ms. Dave executed a promissory note promising repayment of the $350, 000, with interest. (Id.).

         On or about January 21, 2015, Plaintiffs received two checks drawn on Ms. Dave's Wells Fargo checking account, made payable to Plaintiff Deotare. (Id. ¶ 10). One was in the amount of $300, 000 and the other in the amount of $65, 000 (the “Checks”). (Id.). Later that day, Plaintiff Deotare deposited the Checks into her account at Wells Fargo. (Id. ¶ 11). Plaintiffs allege that a Wells Fargo bank teller told them that the Checks had cleared and the funds were available for immediate withdrawal. (Id. ¶ 12). Based on this statement, Plaintiffs marked the promissory note “Satisfied” and returned it to Ms. Dave. (Id. ¶ 14).

         On January 22, 2015, the day after the deposit was made, Plaintiff Deotare attempted to make an online transfer of $365, 000 to Plaintiff Patel's account. (Id. ¶ 13). On January 23, 2015, without notice or explanation, Wells Fargo reversed the deposit of the Checks by Plaintiff Deotare and re-credited the funds to Ms. Dave's account. (Id. ¶ 15). On January 26, 2015, Wells Fargo froze the accounts Plaintiff Deotare used in the transfer from Ms. Dave and to Plaintiff Patel. (Id. ¶ 16). After Wells Fargo re-credited the funds to Ms. Dave's account, a relative allegedly convinced Ms. Dave to transfer the re-credited funds to an unidentified third party. Plaintiffs allege they have no recourse against Ms. Dave because “she does not have any other assets to speak of.” (Id. ¶ 23). Plaintiffs allege that in March 2015, Wells Fargo permanently closed Plaintiffs' and Ms. Dave's accounts. (Id. ¶ 22).

         The Amended Complaint alleges that upon Plaintiff Deotare's inquiry, a branch manager at a Wells Fargo location refused to explain why the Checks were re-deposited into Ms. Dave's account. Approximately one week after the Checks were re-credited, Plaintiffs hand-delivered a letter to Wells Fargo demanding an explanation of the re-deposit and demanding a refund of the amount of the Checks. ([13.1]). Wells Fargo did not respond to the letter.

         B. Procedural History

         On January 23, 2017, Plaintiffs filed their “Tort & Damage Complaint” in the Superior Court of Gwinnett County [1.1].

         On February 24, 2017, Wells Fargo removed the action to this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446 on the grounds that Plaintiffs and Wells Fargo have complete diversity of citizenship, and the amount in controversy exceeds $75, 000.00 [1].

         On May 10, 2017, Plaintiffs filed their Amended Complaint [13], asserting eighteen causes of action and five categories of damages against Wells Fargo. The Amended Complaint asserts causes of action for breach of contract (Count I), detrimental reliance and promissory estoppel (Count II), breach of the implied covenant of good faith (Count III), negligence (Count IV), conversion (Count V), theft by conversion (Count VI), theft by deception (Count VII), constructive trust (Count VIII), money had and received (Count IX), tortious interference with contractual relations (Count X), breach of fiduciary duty (Count XI), misrepresentation and fraud (Count XII), violation of the Georgia Fair Business and Uniform Deceptive Trade Practices Act (Count XIII), violation of Georgia's Uniform Commercial Code (Count XIV), violation of the Expedited Funds Availability Act, 12 U.S.C. § 4001 et seq., (Count XV), violation of the Electronic Fund Transfer Act, 15 U.S.C. § 1693 et seq., (Count XVI), violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, (Count XVII), and “miscellaneous” (Count XVIII).

         On May 24, 2017, Wells Fargo moved to dismiss the Amended Complaint for failure to state a claim upon which relief can be granted [15]. In response, Plaintiffs withdrew their claims for breach of fiduciary duty (Count XI), violation of the Expedited Funds Availability Act (Count XV), violation of the Electronic Fund Transfer Act and Regulation E (Count XVI), and violation of Section 5 of the Federal Trade Commission Act (Count XVII).

         On June 26, 2017, Plaintiffs filed their Motion for Leave to file excess pages in its response to Wells Fargo's Motion to Dismiss [19]. That same day, Plaintiffs filed their Response to Wells Fargo's Motion to Dismiss [20].

         On August 7, 2017, Plaintiffs filed their Motion to Strike portions of Wells Fargo's reply brief in support of its Motion to Dismiss [21].


         On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must “assume that the factual allegations in the complaint are true and give the plaintiffs the benefit of reasonable factual inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010). “‘[U]nwarranted deductions of fact' are not admitted as true.” Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (11th Cir. 1996)). The Court also is not required to accept conclusory allegations and legal conclusions as true. See Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (construing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Mere “labels and conclusions” are insufficient. Twombly, 550 U.S. at 555. “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, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires more than the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290 (quoting Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] their claims across the line from conceivable to plausible.” Id. at 1289 (quoting Twombly, 550 U.S. at 570).

         III. ANALYSIS

         A. Pleading Standards

         Wells Fargo argues the Amended Complaint fails to comply with Rule 8(a) of the Federal Rules of Civil Procedure, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). “Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

         So-called “shotgun pleadings” are disfavored in this circuit. See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 (11th Cir. 2008); accord Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 2001) (explaining that shotgun pleadings “wreak havoc on the judicial system”). One type of shotgun pleading is one “replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action.” Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1322 (11th Cir. 2015). A complaint is also a shotgun pleading if it is “disjointed, repetitive, disorganized and barely comprehensible.” Lampkin-Asam v. Volusia County Sch. Bd., 261 Fed. App'x. 274, 276 (11th Cir. Jan. 9, 2008); see also Benjamin v. Bank of Am., N.A., No. 1:11-CV-02037-JOF, 2012 WL 13008410, at *3 (N.D.Ga. Aug. 13, 2012) (“The portion of Plaintiff's complaint where she sets forth the ‘counts' is nearly incomprehensible in that it block cuts and pastes long passages from various Georgia statutes without alleging any facts relevant to the instant controversy.”). The Eleventh Circuit has stated that, when faced with a shotgun pleading, a district court should require the parties to file an amended pleading rather than allow such a case to proceed to trial. Byrne, 261 F.3d at 1129.

         The Amended Complaint asserts eighteen causes of action and relies on numerous legal conclusions. The facts alleged are slight. Five of the eighteen counts contain only one paragraph in support of the claim alleged. This “kitchen sink” litigation strategy is not well viewed in our circuit, including because it creates undue burden on the Court and unreasonably increases the expense of litigation. That Plaintiffs dismissed four of their eighteen claims after Wells Fargo's motion to dismiss was filed suggests that the Amended Complaint was improperly pled originally. The Court will consider the fourteen claims remaining in the Amended Complaint. If, however, it finds that any claim violated Plaintiffs' obligations under Rule 11 of the Federal Rules of Civil Procedure, the Court may seek appropriate sanctions.[1]

         B. Criminal Statutes

         Plaintiffs assert a claim for “theft by deception” in Count VII of the Amended Complaint. Georgia law does not recognize a civil cause of action for theft by deception. See Kabir v. Statebridge Co., LLC, No. 1:11-CV-2747-WSD, 2011 WL 4500050, at *7 (N.D.Ga. Sept. 27, 2011) (holding that “Plaintiff cannot allege a civil claim for theft by deception” because “O.C.G.A. § 16-8-3 does not provide for a civil remedy and a civil remedy cannot be implied to arise from a violation of that criminal statute”); Am. Gen. Life & Accident Ins. Co. v. Ward, 509 F.Supp.2d 1324, 1330 (N.D.Ga. 2007) (same). Count IV is dismissed.

         Count VI asserts a claim for theft by conversion “by violating O.C.G.A. §16-8-4 (b).” This is also a criminal statute that does not provide a private right of action. O.C.G.A. § 16-8-4. Count VI is also dismissed.

         C. The Account Agreement

         Plaintiffs allege in Count I that Wells Fargo breached its Consumer Account Agreement (the “Account Agreement”). ([15.2]). Despite asserting a breach of contract claim and quoting the relevant standards from the Account Agreement, Plaintiffs did not attach the agreement to the Amended Complaint. Ordinarily, the Court does not consider anything beyond the face of the complaint and documents attached thereto when analyzing a motion to dismiss. Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007). The Court recognizes an exception, however, in cases in which a plaintiff refers to a document in its complaint, the document is central to its claim, its contents are not in dispute, and the defendant attaches the document to its motion to dismiss. Harris v. Ivax Corp., 182 F.3d 799, 802 n. 2 (11th Cir. 1999); Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1368 69 (11th Cir. 1997). The Court may consider these attachments in testing the Amended Complaint's sufficiency without converting a Rule 12(b) motion into a motion for summary judgment. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1276-78 (11th Cir. 1999). Accordingly, in evaluating whether the Amended Complaint states a claim for breach of contract, the Court will consider the Account Agreement attached to Wells Fargo's Motion to Dismiss.

         1. Choice of Law

         A district court sitting in diversity applies the choice-of-law rules of the state in which it sits, in this case Georgia. Rando v. Gov't Employees Ins. Co., 556 F.3d 1173, 1176 (11th Cir. 2009). “Georgia will honor choice of law provisions unless no reasonable basis exists for doing so or, application of the chosen state's law is contrary to a fundamental policy of Georgia.” Bryan v. Hall Chem. Co., 993 F.2d 831, 834 (11th Cir. 1993); see also Convergys Corp v. Keener, 582 S.E.2d 84, 87 (Ga. 2003) (“Georgia courts will not apply chosen law which would contravene the policy of, or would be prejudicial to the interests of this ...

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