United States District Court, D. Arizona
ORDER
H.
Russel Holland, United States District Judge.
JPMorgan
Chase Bank, N.A.'s Motion to Dismiss Lawyers Title's
Crossclaims
Defendant
JPMorgan Chase Bank, N.A. moves to dismiss Lawyers
Title's crossclaims.[1]This motion is opposed.[2] Oral argument has
been heard on the motion.
Background
Plaintiffs
are Joseph and Carla Thuney. Defendants are Lawyers Title of
Arizona, Inc.; Julie-Ann Helms; Helms & Helms, PLLC;
KeyBank N.A.; and JPMorgan Chase Bank, N.A.
In May
2017, plaintiffs were in the process of buying a retirement
home in Surprise, Arizona.[3] Plaintiffs allege that around 9 a.m. on
May 31, 2017, Mr. Thuney received an email that purported to
be from Amanda Zalenski, on behalf of Lawyers, “stating
that the Thuneys['] loan had been funded and that they
were set to close on the 9th of June.”[4] Plaintiffs allege
that “[t]his email included a signature line, logos,
images, and other trade dress indicating it was from
Lawyers” but that it was actually “a forged
electronic document making it appear it was from Lawyers when
it was not.”[5] Plaintiffs allege that “[t]he email
also included a forged combined settlement statement and a
letter apparently on Lawyers Title's letterhead showing
the exact amount due at closing of $119, 555.73 and the
specific branch of Chase to make the wire transfer
to.”[6] That branch was alleged to be
“located in Houston, Texas.”[7]
Plaintiffs
allege that around 9:08 a.m. on May 31, 2017, they
“received another forged email telling them that the
loan had been funded and asking that Joe Thuney call Lawyers
to inform them once the transfer of funds was complete so the
title could be filed for closing.”[8] Plaintiffs allege
that at 11:38 a.m. on May 31, 2017, “using a computer,
Joe Thuney sent the forged payment instructions to
KeyBank.”[9]
Plaintiffs
allege that on June 2, 2017, they “received another
forged email from the person impersonating Amanda Zalenski
stating that Lawyers had not yet received the wire
transfer.”[10] Later that same morning, plaintiffs
allege that “the fraudulent Amanda Zalenski sent a
forged email and updated set of wiring instructions for the
closing funds. This forged email again had the look, feel,
and trade dress of a document from
Lawyers.”[11] Plaintiffs allege that shortly after
receiving this email, “using his computer, Joe Thuney
sent an email to KeyBank containing the updated forged wiring
instructions.”[12]
Plaintiffs
allege that on June 5, 2017 at 9:53 a.m., they
“received confirmation from the fraudulent Amanda
Zalenski that the wire transfer of $119, 555.73 had gone
through” and that attached to the email was “a
Receipt for Deposit that appeared to be from Lawyers
Title.”[13]Plaintiffs allege that “[t]his
time, Joe Thuney noticed that the email addresses were
slightly different” and thus he “called the
number on the fake wire instructions, ” but there was
no answer.[14] Plaintiffs allege that they were
“becoming suspicious that something might be
wrong” and so Joe Thuney called Helms around 3 p.m. on
June 5, 2017.[15] Plaintiffs allege that at 3:36 p.m.,
“Joe Thuney emailed Helms a copy of the fraudulent
Receipt for Deposit” and told her “that he
thought there might be a fraud.”[16]
Plaintiffs
allege that “at 3:57 PM, only hours after the money
transaction, Joe Thuney emailed KeyBank stating that there
was a potential problem and that they needed to cancel the
wire transfer ASAP.”[17] Plaintiffs further allege that
[o]n or about June 5, 2017, between 3:27 PM and 5:57 PM, Joe
Thuney called and emailed Rob Eagar at KeyBank, the real
Amanda Zalenski, and Judith Meyer, assistant escrow officer
at Lawyers, to try to determine what had occurred and attempt
to stop the transaction, informing each of the professionals
of the fraudulent activity. Judith Meyer also directed the
Thuneys not to use Amanda Zalenski's email because
Lawyers thought her [email] may have been
compromised.[18]
Lawyers
Title alleges that it “notified Chase of
[p]laintiffs' claim, i.e., that [p]laintiffs alleged that
they were duped into sending their down payment to the wrong
account” on June 5, 2017.[19] Lawyers Title further
alleges that it “specifically requested that Chase
freeze the funds until KeyBank recalled the wire” and
that “[t]o assist Chase in identifying the funds to
freeze, Lawyers Title forwarded to Chase information provided
to it by [p]laintiffs, including the account number into
which [p]laintiffs had wired their funds and the name of the
beneficiary on the account.”[20] Lawyers Title alleges
that “[o]n June 6, 2017, Chase responded that it had a
record of the recall request from KeyBank” and that
Chase did not say that the fraudsters “had withdrawn
the funds from their Chase account.”[21] Lawyers Title
further alleges that it “is informed and believes that
[p]laintiffs' funds were still on deposit at Chase at
both the time that Chase received notice of the potential
fraud and at the time that Chase acknowledged receipt of the
recall request.”[22] Lawyers Title alleges “that
Chase failed to freeze the funds when notified of the
potential fraud, allowing the bad actors to convert
[p]laintiffs' money[].”[23]
Plaintiffs
commenced this action on May 18, 2018. In their first amended
complaint, they assert breach of fiduciary duty claims
against the Helms defendants and Lawyers Title; negligence
and gross negligence claims against all defendants except for
Chase; an aiding and abetting claim against Chase; Electronic
Funds Transfer Act claims against Chase and KeyBank; and
Arizona Consumer Fraud Act claims against Chase and KeyBank.
On July
19, 2018, Lawyers Title answered plaintiffs' first
amended complaint and asserted crossclaims against Chase,
KeyBank, and the Helms defendants. Lawyers Title asserts two
crossclaims against Chase. In its first crossclaim, Lawyers
Title seeks a declaration that Chase “is[] compelled by
equitable principles to indemnify and hold Lawyers Title
harmless from the claims asserted by [p]laintiffs, as well as
from any attorney's fees and costs that Lawyers Title
might incur in defense of the claims asserted by
[p]laintiffs.”[24] Lawyers Title alleges that it is
entitled to such a declaration because whatever damages
plaintiffs suffered were a result of Chase's and the
other cross-defendants' negligence.[25] Lawyers
Title's second crossclaim is a claim for indemnity and
contribution, which appears to be duplicative of the first
crossclaim. In short, Lawyers Title is seeking
indemnification from Chase and the other cross-defendants.
Pursuant
to Rule 12(b)(6), Federal Rules of Civil Procedure, Chase now
moves to dismiss Lawyers Title's crossclaims against it.
Discussion
“‘To
survive a [Rule 12(b)(6)] 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.'” Zixiang Li v. Kerry, 710
F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “A claim is
facially plausible ‘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. (quoting Iqbal,
556 U.S. at 678). “The plausibility standard requires
more than the sheer possibility or conceivability that a
defendant has acted unlawfully.” Id.
“‘Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops short
of the line between possibility and plausibility of
entitlement to relief.'” Id. (quoting
Iqbal, 556 U.S. at 678). “[T]he complaint must
provide ‘more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.'” In re Rigel Pharmaceuticals,
Inc. Securities Litig., 697 F.3d 869, 875 (9th Cir.
2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). “In evaluating a Rule 12(b)(6)
motion, the court accepts the complaint's well-pleaded
factual allegations as true and draws all reasonable
inferences in the light most favorable to the
plaintiff.” Adams v. U.S. Forest Srvc., 671
F.3d 1138, 1142-43 (9th Cir. 2012).
Chase
first argues that Lawyers Title's crossclaim for
indemnification is defective as a matter of law because in
Arizona, “[g]enerally, there is no indemnity among
joint tortfeasors[.]” Cella Barr Associates, Inc.
v. Cohen, 868 P.2d 1063, 1068 (Ariz.Ct.App. 1994).
“Indemnity allows one who has discharged a
common liability to seek reimbursement in full from
another” and is “‘an all or nothing
proposition damage-wise, and hence should be an all or
nothing proposition fault-wise.'” Herstam v.
Deloitte & Touche, LLP, 919 P.2d 1381, 1388-89
(Ariz.Ct.App. 1996) (quoting Transcon Lines v.
Barnes, 498 P.2d 502, 509 (Ariz. 1972)). “It
permits one defendant to shift the entire loss to one who
more justly deserves it.” Id. at 1389.
“Severally-liable . . . parties who will not have to
pay for damages beyond each one's own percentage of fault
. . . will not have a basis for claiming indemnity from
[other] parties.” Id.
Chase
acknowledges that there are “two narrow
exceptions” to the general rule that there is no
indemnity among joint tortfeasors. Cella Barr, 868
P.2d at 1067. The first exception “applies . . . when
the party seeking protection . . . is acting as an agent or
servant of another tortfeasor[.]” Id. at 1068.
The second exception applies to causes of action
“relating to hazardous wastes or substances or solid
waste disposal sites.” Id. (citation omitted).
Because Lawyers Title does not contend that either of the two
exceptions applies, Chase argues that the only way that
Lawyers Title would be entitled to indemnification is if
Lawyers Title was not at fault for any of ...