Elaster v. Bank of Am. Corp.

1

APRIL ELASTER, Plaintiff, v. BANK OF AMERICA CORPORATION, Defendant.

No. 1:24-cv-11

United States District Court, E.D. Tennessee, Chattanooga

November 18, 2024

STEGER, MAGISTRATE JUDGE

MEMORANDUM OPINION & ORDER

CHARLES E. ATCHLEY, JR. UNITED STATES DISTRICT JUDGE

Before the Court is the Motion to Dismiss for Failure to State a Claim [Doc. 21], filed by Bank of America, N.A Plaintiff's Second Amended Complaint [Docs. 17 &18] fails to state a claim for relief and accordingly, the Motion to Dismiss [Doc. 21] will be GRANTED and this action DISMISSED WITH PREJUDICE.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff's Second Amended Complaint [Doc. 17] asserts claims for negligence and negligent infliction of emotional distress following a delay in cashing a cashier's check. She alleges that on December 8, 2022, she purchased a cashier's check from Bank of America at the downtown Chattanooga branch, with the assistance of four employees. [Doc. 17 at 2]. On December 17, 2022, she attempted to cash that check at the Bank of America branch on Gunbarrel Road. [Id.]. She was told that she could not cash the check because she did not have an account with Bank of America. [Id.].

Plaintiff alleges that the financial center manager told her the check was not legitimate and there was no record of the transaction in their database. [Id.]. She was asked for identification and asked if she was employed. [Id.]. She was later told that the main branch processed the check incorrectly “and as a result that they could not recourse the check or take any money off of it due to the incorrect processing, even though four (4) employees at the main branch reviewed the transaction and approved it.” [Id.]. She claims that “[a]fter 3 hours of interrogation by the bank,” she called the Chattanooga Police Department to make a report. [Id.]. After the police arrived, she alleges the bank “reluctantly” cashed the check. [Id.].

Plaintiff explains that the purpose of the “withdrawal” transaction was to purchase a vehicle for her daughter and that she was not able to complete the transaction due to the Bank's alleged failure to serve her. [Id.]. Finally, she states: “It is my belief that I was discriminated against because of my race, African American.” [Id.].

These allegations are largely identical to those made in the first two iterations of Plaintiff's Complaint - the first filed in the Circuit Court of Hamilton County on December 18, 2023, [Doc. 1-1], and the Amended Complaint [Doc. 8] filed following removal to this Court. The original Complaint asserted that Bank of America owed her a fiduciary duty, which it breached, causing her injury [Doc. 1-1 at 3], while the Amended Complaint also mentioned negligence and negligent infliction of emotional distress (“NIED”). She seeks damages in the amount of $500,000. [Id.]. Neither asserted a claim based on racial discrimination.

On February 16, 2024, Bank of America Corporation (“BAC”) filed a Motion to Dismiss for Failure to State a Claim [Doc. 9], arguing that (1) BAC is a holding corporation, not a bank; (2) Plaintiff is not a customer of any Bank of America entity and alleges no special relationship with BAC that would give rise to a breach of fiduciary duty; and (3) Plaintiff failed to allege any facts to support her allegation of racial discrimination. [Id.]. BAC explained that Bank of America, N.A. (“BANA”), is the entity that operates as a bank, is the correct defendant, and is a separate entity from BAC. [Doc. 9 at 1 n.1, Doc. 14 at 1 n.1].

Plaintiff responded with a Motion for Leave to File Second Amended Complaint [Doc. 13], attaching a proposed second amended complaint that added two new defendants to the action: a Bank of America branch at 2126 Gunbarrel Road Chattanooga, and the Bank of America Chattanooga Main Branch at 200 W M.L. King Blvd, Ste 100. After BAC's responsive brief noted that Plaintiff still had not added BANA to her pleadings, Plaintiff filed a second version of the second amended complaint, identifying BANA in the case caption, though not in the factual allegations.

On April 22, 2024, the Court denied the motion to dismiss without prejudice. [Doc. 16]. Affording Plaintiff significant lenience as a pro se litigant, the Court granted the motion to amend in part, explaining various deficiencies in the pleadings and ordering Plaintiff to file a new amendment. The Court explained that Plaintiff's allegations were insufficient to state a claim for relief as pleaded. [Doc. 16 at 6]. First, Plaintiff did not name BANA as a defendant, despite being repeatedly advised that this was the correct entity. Second, Plaintiff alleged no fiduciary relationship with any Defendant entity. Third, Plaintiff was not a customer of any Bank of America entity, and so could not establish that any Defendant owed her a duty of care. Because Plaintiff did not adequately allege the elements of a negligence claim, she also failed to state a claim for NIED, in addition to failing to allege a serious or severe emotional injury. Finally, the Court noted that Plaintiff did not assert a claim for racial discrimination and alleged no facts to support such a claim. [Id. at 9].

Though these deficiencies appeared unlikely to be cured by amendment, based on the Sixth Circuit's policy of leniency towards pro se litigants, the Court gave Plaintiff a chance to amend. The Order specifically and repeatedly advised that Plaintiff's amended complaint would supersede all prior pleadings.

In response to this Order, Plaintiff filed a Second Amended Complaint [Doc. 17] (the “SAC”) that sets out substantially identical factual allegations and duplicates the deficiencies of her prior pleadings.^[1] BANA is once again not identified as a Defendant. Plaintiff instead names two Bank of America branches as Defendants - one on Gunbarrel Road and the “Chattanooga Main Branch” on West ML King Boulevard. The SAC continues to assert claims for negligence and negligent infliction of emotional distress, but newly cites § 3-103(9) of the Uniform Commercial Code and, in the prayer for relief, mentions breach of contract.

In its supporting memorandum, Bank of America N.A. again notes that the two financial centers are not legal entities, but owned and operated by BANA, who is once again not a named Defendant.^[2] [Doc. 22 at 1]. BANA argues that UCC Article 3-103, adopted by the State of Tennessee as T.C.A. § 47-3-103, does not provide a private cause of action, but merely a definition of “ordinary care.” Next, BANA notes that Plaintiff still has not shown that any Defendant entity owed her a duty of care, which is required for both her negligence and NIED claims. Finally, BANA argues that to the extent that Plaintiff asserts a claim for racial discrimination, it is conclusory and unsupported by any factual allegations.

II. STANDARDS OF REVIEW

On a motion to dismiss, the Court “must accept as true ‘well pleaded facts' set forth in the complaint.” In re Comshare Inc. Sec. Litig., 183 F.3d 542, 548 (6th Cir. 1999) (citation omitted). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Generally, “[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.” Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “The [plaintiff's] factual allegations, assumed to be true, must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). “Mere labels and conclusions are not enough; the allegations must contain ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Id. at 575 (quoting Ashcroft, 556 U.S. at 678). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” Iqbal, 556 U.S. at 678, and the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

III. ANALYSIS

Out of an abundance of caution, the Court identified deficiencies in Plaintiff's proposed second amended complaint and ordered her to file a new proposed second amended complaint. Having the benefit of Defendant's arguments and the Court's identification of pleading deficiencies, Plaintiff has again failed to state a claim for relief.

Plaintiff identifies two claims in her SAC: negligence and negligent infliction of emotional distress. She appears to premise her negligence claim on an alleged violation of the duty of ordinary care, borrowing the standard from the Uniform Commercial Code. As adopted by the State of Tennessee, this section provides in relevant part: “‘Ordinary care' in the case of a person engaged in business means observance of reasonable commercial standards, prevailing in the area in which the person is located, with respect to the business in which the person is engaged.” T.C.A. § 47-3-103(6). As BANA points out, this is merely a definition and does not provide a private right of action.

As the Court explained in its prior order, to state a negligence claim under Tennessee law, a plaintiff's allegations must establish (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate or legal cause. West E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 550 (Tenn. 2005). Duty is “an essential element in all...