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Doherty v. Regions Bank

United States District Court, M.D. Florida, Fort Myers Division

December 9, 2019

MARIAN E DOHERTY, as Guardian of Frances R. Gorman and Executor of the Estate of Patrick J. Gorman, Plaintiff,
v.
REGIONS BANK, an Alabama corporation, Defendant/Third Party Plaintiff BARBARA GORMAN and CAROLINE SILHA, Third Party Defendants.

          OPINION AND ORDER

          JOHH E. STEELE, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on review of defendant's Motion to Dismiss (Doc. #26) filed on May 20, 2019. Plaintiff filed a Response (Doc. #35) on June 17, 2019, and defendant filed a Reply (Doc. #43) on June 25, 2019. For the reasons set forth below, the motion is granted in part and denied in part.

         I.

         On April 30, 2019, Marian E. Doherty (Plaintiff), as the Guardian of Frances Gorman and Executor of the Estate of Patrick Gorman[1], filed a two-count Amended Complaint against Regions Bank.[2]Plaintiff asserts claims against Regions Bank for negligence (Count I) and breach of fiduciary duty (Count II).

         According to the Amended Complaint (Doc. #21): On or about March 4, 2004, Patrick and Frances Gorman established a line of credit with Regions Bank in Naples, Florida. (Doc. #12, ¶ 6.) On or about February 2, 2011, Patrick and Frances Gorman opened a checking account with Regions Bank in Naples, Florida. (Id. ¶ 7.) On an unspecified date, Regions Bank accepted “an invalid and unexecuted power of attorney” which added “unauthorized individuals” to Patrick and Frances Gormans' shared checking account. (Id. ¶¶ 14, 22.) Patrick and Frances Gorman were subsequently the victims of a “theft of more than $320, 000.00” from their Regions Bank accounts.[3] (Id. ¶ 19.)

         II.

         Under Federal Rule of Civil Procedure 8(a)(2), a Complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This obligation “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive dismissal, the factual allegations must be “plausible” and “must be enough to raise a right to relief above the speculative level.” Id. at 555. See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff, Erickson v. Pardus, 551 U.S. 89 (2007), but “[l]egal conclusions without adequate factual support are entitled to no assumption of truth, ” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (citations omitted). Thus, the Court engages in a two-step approach: “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

         III.

         Regions Bank now moves to dismiss the Amended Complaint. As to Count I, Regions Bank argues that Plaintiff's negligence claim is (1) barred by the economic loss rule; and (2) preempted by the Uniform Commercial Code. As to Count II, Regions Bank argues that Plaintiff has failed to state a legally sufficient cause of action. The Court will address each point in turn below.

         A. The Negligence Claim (Count I)

         (1) Whether Count I is Barred by the Economic Loss Rule

         Regions Bank argues that Count I is barred by the economic loss rule because Plaintiff “has not alleged any tortious act independent of the parties' contractual relationship.” (Doc. #26, p. 8.) The Court disagrees.

         Historically under Florida law[4], the economic loss rule barred a plaintiff's claims “where the parties are in contractual privity and one party seeks to recover damages in tort for matters arising out of the contract.” Curd v. Mosaic Fertilizer, LLC,39 So.3d 1216, 1223 (Fla. 2010). The Florida Supreme Court, however, later “return[ed] the economic loss rule to its origin in products liability” and “limit[ed] the application of the economic loss rule to cases ...


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