United States District Court, S.D. Mississippi, Eastern Division
MYRTLE J. SHOEMAKE PLAINTIFF
REGIONS BANK DEFENDANT
MEMORANDUM OPINION AND ORDER
STARRETT, UNITED STATES DISTRICT JUDGE.
reasons below, the Court denies
Defendant's Motion to Dismiss .
maintains a checking account with Defendant. She alleges that
her husband's caretaker forged her signature on at least
thirty-four checks for over $24, 000.00. Plaintiff claims
Defendant processed and paid the checks without question,
failing to exercise ordinary care in good faith. She asserted
several common-law claims against Defendant and demanded a
variety of damages, including punitive damages. Defendant
filed a Motion to Dismiss , which the Court now considers.
Standard of Review
the Court must determine the appropriate standard of review.
A court considering a motion under Rule 12(b)(6) is generally
limited to consideration of the pleadings, Great Lakes
Dredge & Dock Co. LLC v. La. State, 624 F.3d 201,
210 (5th Cir. 2010), but Defendant argues that the Court may
consider several documents attached as a cumulative exhibit
to its motion. Plaintiff contends that the Court can not
consider these materials unless it converts the motion to one
for summary judgment under Rule 56. See Fed. R. Civ.
ultimate question in a Rule 12(b)(6) motion is whether the
complaint states a valid claim when all well-pleaded facts
are assumed true and are viewed in the light most favorable
to the plaintiff.” Ironshore Europe DAC v. Schiff
Hardin, LLP, 912 F.3d 759, 763 (5th Cir. 2019).
Therefore, “[t]he court's review is limited to the
complaint, any documents attached to the complaint, and any
documents attached to the motion to dismiss that are central
to the claim and referenced by the complaint.”
argues that the bank statements, deposit agreements, and
notice of revision attached to its motion were referenced in
the Complaint, but it has not directed the Court to such
references. In fact, the Complaint contains no reference to
the bank statements, deposit agreements, or notice of
revision. Likewise, Plaintiff did not refer to the
declaration of Kimberly Burkhalter Townsley, which contains
more than the bare declarations needed to authenticate the
bank records. Defendant apparently contends that
Plaintiff's reference to the bank account and
transactions is sufficient, but Defendant has not cited any
precedent to that effect. Therefore, because none of these
materials were specifically referenced in Plaintiff's
Complaint, it would not be prudent for the Court to consider
them while applying Rule 12(b)(6)'s standard of review.
12(d) provides: “If, on a motion under Rule 12(b)(6) .
. ., matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is
pertinent to the motion.” Fed.R.Civ.P. 12(d). In such
situations, the “district court has complete discretion
to either accept or exclude the evidence.” Gen.
Retail Servs., Inc. v. Wireless Toyz Franchise, LLC, 255
Fed.Appx. 775, 783 (5th Cir. 2007). The Court declines to
consider the extrinsic materials. Accordingly, Rule
12(b)(6)'s standard of review applies.
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Great Lakes Dredge & Dock, 624 F.3d
at 210 (punctuation omitted). “To be plausible, the
complaint's factual allegations must be enough to raise a
right to relief above the speculative level.”
Id. (punctuation omitted). The Court must
“accept all well-pleaded facts as true and construe the
complaint in the light most favorable to the
plaintiff.” Id. But the Court will not accept
as true “conclusory allegations, unwarranted factual
inferences, or legal conclusions.” Id.
Likewise, “a formulaic recitation of the elements of a
cause of action will not do.” PSKS, Inc. v. Leegin
Creative Leather Prods., Inc., 615 F.3d 412, 417 (5th
Cir. 2010) (punctuation omitted). “While legal
conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Ashcroft
v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950, 173
L.Ed.2d 868 (2009).
Common-Law or UCC
Defendant argues that Plaintiff's common-law tort claims
have been “displaced” by the UCC, and that the
Court must dismiss Plaintiff's Complaint because of the
pleading error. In response, Plaintiff acknowledges that her
claims have been “subsumed” by the UCC, but
argues that she need not plead the specific statutory
provisions. Plaintiff suggests that the Court merely apply
the UCC to her claims as pleaded, rather than dismiss
has not cited any precedent requiring the Court to dismiss
Plaintiff's common-law claims, rather than simply apply
the UCC to them. Midwest Feeders, Inc. v. Bank of
Franklin, 114 F.Supp.3d 419 (S.D.Miss. 2015), is
distinguishable because the plaintiff there pleaded both UCC
and common-law claims. Regardless, even if the Court were
inclined to dismiss Plaintiff's common-law claims, it
would give her a chance to amend. Therefore, the Court
declines to dismiss Plaintiff's claims on this ...