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Shoemake v. Regions Bank

United States District Court, S.D. Mississippi, Eastern Division

June 25, 2019

MYRTLE J. SHOEMAKE PLAINTIFF
v.
REGIONS BANK DEFENDANT

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT, UNITED STATES DISTRICT JUDGE.

         For the reasons below, the Court denies Defendant's Motion to Dismiss [4].

         I. Background

         Plaintiff 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 [4], which the Court now considers.

         II. Standard of Review

         First, 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. P. 12(d).

         “The 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.” Id.

         Defendant 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.

         Rule 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.

         To 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).

         III. Discussion

         A. Common-Law or UCC

         First, 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 them.[1]

         Defendant 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 ...


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