Bahmann v. Wells Fargo Bank, N.A.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ELIZABETH BAHMANN,

Plaintiff,

v. Case No: 6:23-cv-1303-PGB-EJK

WELLS FARGO BANK, N.A.,

Defendant.

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ORDER

This cause comes before the Court on Defendant Wells Fargo Bank, N.A.’s

(“Defendant Wells Fargo”) Motion to Dismiss (Doc. 7 (the “Motion”)) and

Plaintiff Elizabeth Bahmann’s response in opposition (Doc. 13). Upon

consideration, the Motion is due to be granted in part and denied in part.

I. BACKGROUND1

This case flows from scammers withdrawing Plaintiff’s funds from accounts

held with Defendant Wells Fargo’s commercial banking services. (Doc. 1-1).

Plaintiff is a seventy-two year-old patron of Defendant Wells Fargo. (Id. pp. 3–7).

From approximately April to August of 2022, Plaintiff received phone calls from

scammers targeting elderly patrons such as herself. (Id. ¶¶ 6–7). These scammers

1 This account of the facts comes from the Plaintiff’s Complaint. (Doc. 1-1). The Court accepts

the well-pled factual allegations therein as true when considering motions to dismiss. See

Williams v. Bd. of Regents, 477 F.3d 1282, 1291 (11th Cir. 2007).

lied, cajoled, and fraudulently induced her into both forfeiting substantial funds

from her accounts with Defendant Wells Fargo and entering into dubious

mortgage loan agreements. (Id. ¶¶ 7, 15, 20). Plaintiff alleges Defendant failed to

effectively and adequately monitor and assess her accounts and contractual

agreements during the period she was targeted by scammers. (Id. ¶¶ 9–11, 17, 21)

On February 20, 2023, Plaintiff sent a letter to Defendant Wells Fargo informing

it of her beliefs as to the foregoing. (Id. at pp. 3, 7–8).

Consequently, Plaintiff filed the Complaint in state court, averring in Count

I that Defendant breached its fiduciary duty and in Count II that Defendant’s

negligently failed to “employ and/or effectuate methods, practices, and policies

that would safeguard Plaintiff’s finances from predatory financial practices and

scams.” (Id.). Defendant removed the case to this Court (Doc. 1) and now moves to

dismiss the Complaint for failure to state a claim (Doc. 7). After Plaintiff’s response

in opposition (Doc. 13), this matter is ripe for review.2

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss, the complaint “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face when the

plaintiff “pleads factual content that allows the court to draw the reasonable

2 The Court struck Plaintiff’s initial response as improper because it provided no citations to

legal authority to support its arguments. (Docs. 8, 9). Plaintiff subsequently filed the instant

response as directed. (Doc. 13).

inference that the defendant is liable for the misconduct alleged.” Id. Legal

conclusions and recitation of a claim’s elements are properly disregarded, and

courts are “not bound to accept as true a legal conclusion couched as a factual

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Courts must also view the

complaint in the light most favorable to the plaintiff and must resolve any doubts

as to the sufficiency of the complaint in the plaintiff’s favor. Hunnings v. Texaco,

Inc., 29 F.3d 1480, 1484 (11th Cir. 1994) (per curiam).

In sum, courts must: reject conclusory allegations, bald legal assertions, and

formulaic recitations of the elements of a claim; accept well-pled factual allegations

as true; and view well-pled allegations in the light most favorable to the plaintiff.

Iqbal, 556 U.S. at 679.

III. DISCUSSION

The Court addresses the insufficiency of Plaintiff’s breach of fiduciary duty

claim and negligence claim in turn.

A. Breach of Fiduciary Duty

As part of stating a claim for breach of fiduciary duty, the plaintiff must

establish the existence of a fiduciary relationship with the defendant. Crusselle v.

Mong, 59 So. 3d 1178, 1181 (Fla. 5th DCA 2011). “Fiduciary relationships can be

created expressly or impliedly under Florida law.” Arbitrajes Financieros, S.A. v.

Bank of Am., N.A., 605 F. App’x 820, 823 (11th Cir. 2015) (per curiam). An implied

fiduciary relationship results when the particular circumstances of the parties’

relationship create “a degree of dependency on one side and an undertaking on the

other side to protect and/or benefit the dependent party.” Masztal v. City of

Miami, 971 So. 2d 803, 809 (Fla. 3d DCA 2007).

Plaintiff primarily relies on cases which note that whether a fiduciary duty

exists is a question of fact and so argues that the Court should allow the fiduciary

duty claim to proceed to discovery. (Doc. 13, pp. 3–4). While generally true, Florida

courts have also held some factual contexts do not ordinarily engender a fiduciary

duty and, as such, discovery is unwarranted if the allegations fall into these buckets

absent more. For example, “[u]nder Florida law, banks ordinarily do not owe

fiduciary duties to their customers.” Lamm v. State St. Bank & Tr. Co., 889 F.

Supp. 2d 1321 (S.D. Fla. 2012) (citing Jaffe v. Bank of Am., N.A., 667 F.Supp.2d

1299, 1319 (S.D. Fla. 2009)), aff’d sub nom. Lamm v. State St. Bank & Tr., 749

F.3d 938 (11th Cir. 2014); see also Motorcity of Jacksonville, Ltd. v. Se. Bank N.A.,

83 F.3d 1317, 1339 (11th Cir. 1996). While there is no bright line delineating which

types of banking relationships are enough to create an implied fiduciary duty,

Florida’s courts and federal courts applying Florida law largely hold that parties to

an arms-length business transaction do not enjoy a fiduciary relationship. See, e.g.,

BVS Acquisition Co. v. Brown, 649 F. App’x 651, 664–65 (11th Cir. 2016) (per

curiam) (finding no implied fiduciary relationship between investors and an

investment manager due to arms-length business deal); Am. Honda Motor Co. v.

Motorcycle Info. Network, Inc., 390 F. Supp. 2d 1170, 1179–80 (M.D. Fla. 2005)

(finding no implied fiduciary relationship between two companies which entered

into business agreement); Mac-Gray Servs., Inc. v. DeGeorge, 913 So. 2d 630, 633

(Fla. 4th DCA 2005) (finding no implied fiduciary relationship between buyer and

seller of laundromat equipment). This is because “there is no duty imposed on

either party [in a business relationship] to protect or benefit the other.” Taylor

Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So. 2d 536, 541 (Fla. 5th DCA

2003) (per curiam). What is more, a fiduciary duty cannot be unilaterally imposed

by one placing trust or confidence in the other: there must be “some recognition,

acceptance or undertaking of the duties of a fiduciary on the part of the other

party.” Lanz v. Resolution Trust Corp., 764 F. Supp. 176, 179 (S.D. Fla. 1991); Jaffe,

667 F. Supp. 2d at 1319 (“One may not . . . unilaterally impose a fiduciary

relationship [on a lender] without a conscious assumption of such duties by [the

lender] to be held liable as a fiduciary.”); see also Lamm (“The fact Plaintiff

unilaterally placed his trust in State Street to oversee the account investments is

therefore insufficient to create a fiduciary relationship.”).

In light of this Florida caselaw, Plaintiff puts forward insufficient factual

allegation, beyond Plaintiff’s advanced age, to create a plausible inference that

Defendant Wells Fargo as a banking institution owed her a fiduciary duty. Plaintiff

baldly alleges that, “Defendant [Wells Fargo] had a fiduciary duty to ensure that

its partron’s finances are safeguarded against predatory financial practices and

scams.” (Doc. 1-1, ¶ 16). This is entirely conclusory, and despite being given two

bites at the apple to support it as a proposition of law, Plaintiff failed to do so. In

particular, Plaintiff provides no caselaw which implies that Plaintiff’s age by itself

creates additional fiduciary duties for banking institutions such as Defendant

Wells Fargo. Because Plaintiff may be able to elaborate on these allegations in

order to make an inference of such a fiduciary duty plausible, however, the Court

will allow repleader.

B. Negligence

To state a claim for negligence, a plaintiff must allege: (1) the defendant

owed a duty of reasonable care to the plaintiff, (2) the defendant breached that

duty, and (3) the plaintiff suffered damages as a result. See Hasenfus v. Secord,

962 F.2d 1556, 1559–60 (11th Cir. 1992); Paterson v. Deeb, 472 So. 2d 1210, 1214

(Fla. 1st DCA 1985). The determination of whether a duty exists is a question of

law to be determined by the court. Fla. Dep’t of Corr. v. Abril, 969 So. 2d 201, 204

(Fla. 2007); Jenkins v. W.L. Roberts, Inc., 851 So. 2d 781, 783 (Fla. 1st DCA 2003)

(“The duty element of negligence is a threshold legal question; if no legal duty

exists, then no action for negligence may lie.”). Plaintiff alleges that Defendant

Wells Fargo had a duty to protect her from fraud and exploitation from third-party

scammers and that Defendant Wells Fargo breached that duty, causing Plaintiff

loss. (Doc. 1-1, ¶¶ 8–21). However, Defendant Wells Fargo asserts that it owed no

such duty to Plaintiff. (Doc. 7, pp. 3–7).

Generally, “there is no common law duty to prevent the misconduct of third

persons.” Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 918

(Fla. 1985) (citing RESTATEMENT (SECOND) OF TORTS § 315 (1965)); Gross v. Family

Servs. Agency, 716 So. 2d 337, 338 (Fla. 4th DCA 1998). However, “[a] legal duty

may arise from legislation, case law, or the general facts of the case.” Janis v. Pratt

& Whitney Can., Inc., 370 F. Supp. 2d 1226, 1229 (M.D. Fla. 2005). Of specific

importance to this case, “Florida courts permit proof of a statutory violation to

serve as prima facie evidence of negligence because ‘the standard of conduct or

care embraced within such [a] legislative . . . measure [] represent[s] a standard of

at least reasonable care which should be adhered to in the performance of any

given activity.’” Kohl v. Kohl, 149 So. 3d 127, 132 (Fla. 4th DCA 2014) (quoting

Dusine v. Golden Shores Convalescent Ctr., Inc., 249 So. 2d 40, 41–42 (Fla. 2d

DCA 1971)). Although proof of a statutory violation will not “overhaul the

negligence cause of action” by converting it into a case sounding in negligence per

se, Florida courts do allow the showing of a statutory violation to establish the

existence of a duty and a breach thereof. Id.

To that end, Plaintiff attempts to establish a duty by arguing that Defendant

Wells Fargo violated its duties under the Florida’s Adult Protective Services Act

(the “Act”), FLA. STAT. §§ 415.101–113. (Doc. 13, pp. 2–3). In relevant part, the

Act requires any bank “who knows, or has reasonable cause to suspect, that a

vulnerable adult has been or is being . . . exploited” to report such exploitation to

the Florida Department of Children and Families. FLA. STAT. § 415.1034(1)(a). The

Act defines “vulnerable adult” as “a person 18 years of age or older whose ability to

perform the normal activities of daily living or to provide for his or her own care or

protection is impaired due to a mental, emotional, sensory, long-term physical, or

developmental disability or dysfunction, or brain damage, or the infirmities of

aging.” FLA. STAT. § 415.102(28). The Florida Legislature has illuminated that a

primary purpose of the Act’s mandatory reporting requirement is to “cause the

protective services of the state to be brought to bear in an effort to prevent

further . . . exploitation of vulnerable adults.” Id. § 415.101(2).

Nowhere in the Complaint does Plaintiff allege that Defendant Wells Fargo

had actual knowledge of the scams to which Plaintiff was subject while it was

occurring. (See Doc. 1-1). Instead, Plaintiff conclusorily alleges that Defendant

Wells Fargo “failed to employ and/or effectuate methods, practices, and policies

that would safeguard Plaintiff’s finances from predatory financial practices and

scams.” (Id. ¶ 21). Without more, this conclusory allegation does not trigger a

plausible inference that Defendant Wells Fargo had “reasonable cause to suspect”

that a vulnerable adult was being exploited as required to trigger the Act’s statutory

duties. FLA. STAT. § 415.1034(1)(a); Arberman v. PNC Bank, Nat’l Ass’n, No. 23-

10182, 2023 WL 3910573 (11th Cir. June 9, 2023) (affirming dismissal of a

negligence claim against a bank flowing from third-party scammer’s fraudulent

access to a bank account due to lack of duty to an elderly seventy-one year-old

plaintiff because the plaintiff failed to adequately allege the bank had actual

knowledge or reasonable cause to suspect the exploitation was occurring).

Plaintiff’s pleading contrasts markedly with Ginder v. Bank of Am. Corp., No. 6:14-

cv-1271, 2015 WL 898595, at *1–4 (M.D. Fla. Mar. 3, 2015) where, for example,

the Court found that in addition to failing to investigate at least twenty instances

of fraud involving the eighty-one year-old plaintiff there, the bank eventually had

actual knowledge of exploitative conduct by third-parties and yet still failed to

properly safeguard the plaintiff and her funds. Consequently, Plaintiff fails to state

a claim for negligence. Again, more detailed allegations may push Plaintiffs claim

over the line into the realm of plausibility, so the Court will allow repleader.

IV. CONCLUSION

Accordingly, itis ORDERED AND ADJUDGED that

1. Defendant’s Motion to Dismiss (Doc. 7) is GRANTED IN PART and

DENIED IN PART;

2. The Complaint (Doc. 1-1) is DISMISSED WITHOUT

PREJUDICE; and

3. On or before September 15, 2023, Plaintiff may file an amended

complaint provided she can do so consistent with the directives of this

Order and Rule 11. Failure to timely file may result in dismissal of the

case with prejudice.

DONE AND ORDERED in Orlando, Florida on August 29, 2023.

/ s a——

PAUL G.

UNITED STATES®ISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties