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Ferring v. Bank of America NA

United States District Court, D. Arizona

February 3, 2016

Russell Tracy Ferring, Plaintiff,
v.
Bank of America NA, et al., Defendants. ACE Private Risk Services, Counterclaimant,
v.
Russell Tracy Ferring, Counterdefendant.

ORDER

G. Murray Snow United States District Judge

Pending before the Court is Defendant Bank of America, N.A.’s (“BANA”) motion to dismiss Plaintiff Russell Tracy Ferring’s (“Ferring”) first amended complaint (“FAC”) (Doc. 13). (Doc. 14.) Also pending is Ferring’s motion to dismiss Defendant ACE Private Risk Service’s (“ACE”) counterclaim for declaratory judgment pursuant to Rule 12(b)(6) and A.R.S. § 12-1831. (Doc. 20.) For the following reasons, the Court grants BANA’s motion and strikes Ferring’s motion.

BACKGROUND

In September 2014, Ferring negotiated with “Aaron Cappel” (“Cappel”) for the purchase of an automobile. FAC ¶¶ 17, 29. Ferring and Cappel agreed on a $34, 000 purchase price. FAC ¶ 18. The funds were to be transferred from Ferring’s BANA account to Cappel’s BANA account. FAC ¶¶ 6, 29, 31. BANA opened Cappel’s account under the name of Joel Scott, a California attorney. FAC ¶¶ 6, 29, 31. Ferring purportedly received instructions to transfer the funds from “Joel Scott Attorney at Law Negotiation Lawyers in San Mateo, CA[.]” FAC ¶ 17. The instructions provided an account name, ADA Council Services (“ADA Account”), a BANA account number, and an attached contract for the purchase of the automobile signed by Cappel and Scott. FAC ¶¶ 17, Ex. 3, 18, Ex. 4. The instructions also asked Ferring to include in the wire transfer memo line: “Motor Vehicle Contract 7377.” FAC ¶ 17, Ex. 3.

On October 1, 2014, Ferring, who had been a BANA customer for 33 years, went to his BANA branch to make the transfer. FAC ¶ 18. Ferring presented the executed contract to a BANA associate and instructed her to transfer $34, 000 into the ADA Account. FAC ¶ 18. While discussing the transfer, Ferring asked the associate when the ADA Account had been opened. FAC ¶ 18. The associate responded that she could not tell Ferring that information, but “it’s a [BANA] account so I’ll run the transaction.” FAC ¶ 18. The associate did not contact a manager to determine if she could disclose the age of the account. FAC ¶ 19. The ADA Account was “new, ” and Ferring alleges he would not have approved the transfer if the associate had told him the age of the account. FAC ¶ 19. Ferring, however, approved the transaction and BANA transferred the $34, 000 from Ferring’s account into the ADA Account that same day. FAC ¶ 29. The transfer receipt stated “[a]ll items are . . . subject to verification and conditions of the Rules and Regulations of this Bank and as otherwise provided by law.” FAC ¶ 15.

Ferring never received the automobile; instead Cappel absconded with the money. FAC ¶¶ 8, 29. According to Ferring, “Cappel was an imposter who had no authority from attorney Joel Scott.” FAC ¶ 7.

Ferring alleges that BANA never took steps to verify the validity of the ADA Account, including confirming Cappel’s identity, his purpose for the account, his residence, occupation, social security number, or his EIN number. FAC ¶ 31. Nor did BANA contact Joel Scott to verify whether he in fact intended to open the ADA Account on Cappel’s behalf. FAC ¶¶ 19, 31.

On various pages of its website and through customer correspondence, BANA publishes statements about its efforts to protect customers from fraud. FAC ¶¶ 20, 21, Ex. 5. Ferring alleges, on information and belief, that BANA also has internal policies and procedural controls designed to safeguard its customer’s accounts. FAC ¶ 22. Federal statutes further impose reporting and record keeping requirements on BANA in an effort to prevent financial crimes like money laundering and fraud. FAC ¶ 12.

DISCUSSION

I. Legal Standard

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact are assumed to be true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Dismissal under Rule 12(b)(6) can be based on “the lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To avoid dismissal, a complaint need contain only “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The principle that a court accepts as true all of the allegations in a complaint does not apply to legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “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. “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. To show that the plaintiff is entitled to relief, the complaint must permit the court to infer more than a mere possibility of misconduct. Id.

II. Analysis

A. BANA’s Motion to Dismiss

Ferring makes claims for negligence and negligent supervision against BANA. One of the four elements Ferring must establish to bring a negligence claim is “(1) a duty requiring the defendant to conform to a certain standard of care . . . .” Gipson v. Kasey, 214 Ariz. 141, 143, 150 P.3d 228, 231 (2007) (en banc) (citation omitted). Whether a duty exists is a matter of law; and, ...


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