United States District Court, N.D. Georgia, Atlanta Division
RAJANI T. DEOTARE, and CHANDANI V. PATEL, Plaintiffs,
WELLS FARGO BANK, N.A., Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Wells Fargo Bank,
N.A.'s (“Wells Fargo”) Motion to Dismiss
Plaintiffs' First Amended Complaint ; Plaintiffs
Rajani T. Deotare, and Chandani V. Patel's
(“Plaintiffs”) Motion to File Excess Pages ;
and Plaintiffs' Motion to Strike Wells Fargo's Reply
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  (“Compl.”) ¶ 9). In return
for the $350, 000, Ms. Dave executed a promissory note
promising repayment of the $350, 000, with interest.
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).
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).
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.
January 23, 2017, Plaintiffs filed their “Tort &
Damage Complaint” in the Superior Court of Gwinnett
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 .
10, 2017, Plaintiffs filed their Amended Complaint ,
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”
24, 2017, Wells Fargo moved to dismiss the Amended Complaint
for failure to state a claim upon which relief can be granted
. 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).
26, 2017, Plaintiffs filed their Motion for Leave to file
excess pages in its response to Wells Fargo's Motion to
Dismiss . That same day, Plaintiffs filed their Response
to Wells Fargo's Motion to Dismiss .
August 7, 2017, Plaintiffs filed their Motion to Strike
portions of Wells Fargo's reply brief in support of its
Motion to Dismiss .
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)).
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).
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).
“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.
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.
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.
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.
The Account Agreement
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.
Choice of Law
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 ...