SFS Check, LLC v. First Bank of Delaware

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0293p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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SFS CHECK, LLC, ┐

Plaintiff-Appellant, │

│

│ No. 14-1104

v. │

>

│

FIRST BANK OF DELAWARE, et al., │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Flint

No. 4:12-cv-14607—Terrence George Berg, District Judge.

Decided and Filed: December 16, 2014

Before: SILER, SUTTON, and McKEAGUE, Circuit Judges.

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COUNSEL

ON BRIEF: Raymond R. Burkett, BURKETT & ASSOCIATES, Livonia, Michigan, for

Appellant. Christopher A. Cornwall, DICKINSON WRIGHT, PLLC, Detroit, Michigan,

Richard L. Scheff, MONTGOMERY MCCRACKEN WALKER & RHOADS LLP,

Philadelphia, Pennsylvania, for Appellees.

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OPINION

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SILER, Circuit Judge. The main issues in this case are (1) whether answering a phone

call establishes personal jurisdiction in the state from which the phone call was made; and

(2) whether a bank owes a duty of care to an identity theft victim who is not a customer. SFS

Check, LLC (SFS), a Michigan financial services company, processed all its transactions through

its account at Fifth Third Bank. Fifth Third discovered that illegal gambling transactions were

1

No. 14-1104 SFS Check v. First Bank of Del., et al. Page 2

being processed through an account associated with SFS at First Bank of Delaware (FBD). Fifth

Third terminated SFS’s account. SFS soon went bankrupt. It sued FBD and some of its officers,

alleging negligence and fraud. The district court found that (1) it lacked personal jurisdiction

over all individual defendants; (2) FBD owed no duty of care to SFS because SFS was not a

customer; and (3) SFS failed to adequately plead a claim of fraud. SFS now appeals the

dismissal of its complaint. We AFFIRM.

I.

SFS is a defunct company run by Charles Kopko in Michigan. It provided financial

transaction processing and electronic funds transfers to companies engaged in e-commerce. It

processed those transactions through its account at Fifth Third, which is not a party to this suit.

In 2010, Fifth Third discovered that FBD was processing illegal gambling funds through SFS’s

account at Fifth Third and notified SFS that it was closing SFS’s account immediately. Losing

this account crippled SFS’s ability to do business, and it soon went bankrupt.

In August 2010, Kopko telephoned FBD and spoke to Sian Bastable, FBD’s vice-

president for e-commerce. According to Kopko, Bastable said FBD did not have an account in

SFS’s name. In October 2010, SFS received a grand jury subpoena related to a federal

investigation of the gambling transactions done in SFS’s name. When Kopko called Bastable

again to discuss the subpoena, Bastable admitted that FBD had an account in SFS’s name and

that the board of directors was aware of this account.

In 2012, SFS filed a complaint in federal court for negligence and fraud against FBD,

Bastable, and FBD’s individual directors. The defendants filed a motion to dismiss, arguing that

Michigan courts lacked personal jurisdiction over the individual defendants under Fed. R. Civ. P.

12(b)(2) and that SFS failed to state a claim for which relief can be granted under Fed. R. Civ. P.

12(b)(6).

After conducting discovery, SFS filed a motion for leave to file a second amended

complaint, which included its proposed second amended complaint. The district court denied

SFS’s motion and dismissed the case.

No. 14-1104 SFS Check v. First Bank of Del., et al. Page 3

II.

One motion under review is a motion for leave to amend under Fed. R. Civ. P. 15(a)(2).

Although the rule encourages courts to give leave to amend “when justice so requires,” id.,

courts need not give leave to amend when doing so would be futile. Rose v. Hartford

Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). Amending would be futile if a

proposed amendment would not survive a motion to dismiss. Riverview Health Inst. LLC v.

Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).

A district court’s decision to dismiss a case for failure to state a claim for which relief can

be granted under Rule 12(b)(6) is a decision we review de novo. Hall v. Callahan, 727 F.3d 450,

453 (6th Cir. 2013). Whether a court has personal jurisdiction over a defendant is also a question

of law we review de novo. Beydoun v. Wataniya Rests. Holding, Q.S.C., 768 F.3d 499, 504 (6th

Cir. 2014). Likewise, whether a defendant owed a duty of care to a plaintiff is a legal question

subject to de novo review. See Graves v. Warner Bros., 656 N.W.2d 195, 205-06 (Mich. Ct.

App. 2002).

To survive a Rule 12(b)(6) motion, a complaint must comply with the pleading

requirements of Rule 8(a), which, among other things, requires a “short and plain statement of

the claim showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 677-

78 (2009). A pleading must go beyond “labels and conclusions” or a mere “formulaic recitation

of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

“‘[N]aked assertions devoid of further factual enhancement’ contribute nothing to the sufficiency

of the complaint.” 16630 Southfield Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 506 (6th

Cir. 2013) (quoting Iqbal, 556 U.S. at 678).

III.

The first issue concerns specific personal jurisdiction. The district court found that while

it had jurisdiction over FBD, it lacked personal jurisdiction over the members of FBD’s board of

directors and over Bastable.

To survive a motion to dismiss for lack of personal jurisdiction under Fed. R. Civ. P.

12(b)(2), a plaintiff must prove that jurisdiction is proper over each defendant individually.

No. 14-1104 SFS Check v. First Bank of Del., et al. Page 4

Beydoun, 768 F.3d at 504. When, as here, the district court allows discovery on the motion, the

court should consider the facts offered by both parties and rule according to the preponderance of

the evidence. Serras v. First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989). A

federal court may only exercise jurisdiction over a party in a diversity-of-citizenship case when

such jurisdiction is both authorized by state law and permitted by the Due Process Clause of the

Fourteenth Amendment. Beydoun, 768 F.3d at 504.

SFS argues that jurisdiction over Bastable exists under Michigan’s “long-arm” statute,

specifically Mich. Comp. Laws § 600.705(2). This provision provides for personal jurisdiction

over nonresidents for claims “arising out of” acts that include “doing or causing an act to be

done, or consequences to occur, in the state resulting in an action for tort.” Id. SFS’s theory is

that when Bastable incorrectly told Kopko that FBD did not have an account in SFS’s name, this

negligent or fraudulent failure to divulge critical information harmed SFS in Michigan.

Even assuming that Bastable’s statement over the telephone satisfied Michigan’s long-

arm statute, the court’s jurisdiction remains limited by the federal Due Process Clause. The

relevant question under the Due Process Clause is whether the nonresident defendant possessed

such “minimum contacts” with the forum state that exercising jurisdiction would comport with

“traditional notions of fair play and substantial justice.” Beydoun, 768 F.3d at 505 (quoting Int’l

Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). This court has its own three-pronged test

for assessing the existence of “minimum contacts”:

First, the defendant must purposefully avail himself of the privilege of acting in

the forum state or causing a consequence in the forum state. Second, the cause of

action must arise from the defendant’s activities there. Finally, the acts of the

defendant or consequences caused by the defendant must have a substantial

enough connection with the forum state to make the exercise of jurisdiction over

the defendant reasonable.

Id. (quoting S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968)).

Purposeful availment happens when the defendant personally takes actions that create a

“substantial connection” with the forum state such that he can “reasonably anticipate being haled

into court there.” Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 889 (6th Cir. 2002)

(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)). Jurisdiction over the

individual officers of a corporation cannot be predicated merely upon jurisdiction over the

No. 14-1104 SFS Check v. First Bank of Del., et al. Page 5

corporation. Balance Dynamics Corp. v. Schmitt Indus., Inc., 204 F.3d 683, 698 (6th Cir. 2000).

We now apply this rubric to SFS’s allegations against Bastable.

SFS alleges only two contacts between Bastable and Michigan. First, Bastable answered

Kopko’s phone call in August 2010. SFS says Bastable’s failure to divulge critical information

during this call contributed to the demise of the company. Second, SFS says Bastable returned a

phone call from Kopko in October 2010. SFS does not allege that the information conveyed in

this phone call was inaccurate.

We agree with the district court that these phone calls do not establish purposeful

availment on the part of Bastable. The August phone call resulted from the “unilateral activity”

of Kopko. A person like Bastable does not create a “substantial connection” with another state

merely by answering the phone. Furthermore, the injury to SFS — Fifth Third’s decision to

terminate SFS’s account — happened before either of these telephone conversations. The injury

that preceded the phone calls could not have arisen from the phone calls. Nor would we consider

the exercise of jurisdiction over Bastable reasonable under these circumstances. Bastable did not

have the minimum contacts necessary to support the jurisdiction of a Michigan court.

IV.

SFS’s first claim against FBD is for negligence. The elements of negligence under

Michigan law are duty, breach of that duty, causation, and damages. Brown v. Brown,

739 N.W.2d 313, 316-17 (Mich. 2007). The threshold question of whether the defendant owed a

duty to the plaintiff is a question of law to be decided by the court. Fultz v. Union-Commerce

Assocs., 683 N.W.2d 587, 590 (Mich. 2004). The almost-universal law in this country is that

banks owe a duty of care only to their own customers. Contour Indus., Inc. v. U.S. Bank, N.A.,

437 F. App’x 408, 416 (6th Cir. 2011); Lerner v. Fleet Bank, N.A., 459 F.3d 273, 286 (2d Cir.

2006) (explaining that banks generally do not owe non-customers a duty to protect them from

customers’ intentional torts); El Camino Res., LTD. v. Huntington Nat’l Bank, 722 F. Supp. 2d

875, 907 (W.D. Mich. 2010) (“Michigan law, in accord with the universal rule in this country,

holds that a bank’s relationship is with its customer and that the bank owes third parties no duty

of care . . . .”); Portage Aluminum Co. v. Kentwood Nat’l Bank, 307 N.W.2d 761, 765 (Mich. Ct.

App. 1981).

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SFS does not claim that it opened an account at FBD. Instead, it alleges that an unnamed

third party opened a fraudulent account at FBD in SFS’s name.1 SFS asks this court, as a matter

of public policy, to adopt a new rule that banks owe a duty of care to a person whose name is

attached to a fraudulent account.

SFS relies on Patrick v. Union State Bank, 681 So. 2d 1364 (Ala. 1996), in which the

Alabama Supreme Court held that a bank owes a duty of care to a person in whose name an

account is opened to ensure that the person is not an imposter. But Patrick “has met with near

universal disapproval.” Brunson v. Affinity Fed. Credit Union, 972 A.2d 1112, 1123 & 1124

n.12 (N.J. 2009) (finding “no published decision and but one unpublished case that follows

Patrick without qualification”). Even the Alabama Supreme Court has admitted that their

“inquiry in Patrick was not properly focused.” Smith v. AmSouth Bank, Inc., 892 So. 2d 905,

911 (Ala. 2004). Although we recognize the serious threat posed by identity theft, we are not

prepared to impose a new duty on banks, particularly one that has been rejected by courts across

the country. See, e.g., Huggins v. Citibank, N.A., 585 S.E.2d 275, 278 (S.C. 2003) (declining to

recognize a new tort action against banks for “negligent enablement of imposter fraud”).

In the alternative, SFS argues that it was a customer of FBD. The Uniform Commercial

Code, as adopted by Michigan, defines “customer” as a person “having an account with a

bank or for whom a bank has agreed to collect items.” Mich. Comp. Laws §§ 440.4104, .4605.

Courts have distilled a number of factors for analyzing whether a person qualifies as a bank

“customer.” These include whether (1) the person is named on the account; (2) the person

opened the account; (3) the person deposited money into the account; (4) the person has

authority to withdraw funds from the account; and (5) the person receives statements of account

from the bank. Hanover Ins. Co. v. M&T Bank, 783 F. Supp. 2d 809, 816 (E.D. Va. 2011)

(citing Collins v. First Union Nat’l Bank, 636 S.E.2d 442, 445-46 (Va. 2006); Radin v. Crestar

Bank, 457 S.E.2d 65, 66 (Va. 1995); United Va. Bank v. E.L.B. Tank Constr., Inc., 311 S.E.2d

773, 775 (Va. 1984)).

1

The district court expressed skepticism that FBD ever had an account in SFS’s name. According to the

court, SFS admitted during oral argument that after reviewing thousands of FBD records it found no evidence of any

FBD account in SFS’s name. SFS Check, LLC v. First Bank of Del., 990 F. Supp. 2d 762, 769 n.4 (E.D. Mich.

2013). We assume for the sake of analysis that SFS’s allegations regarding the name on the fraudulent account are

true.

No. 14-1104 SFS Check v. First Bank of Del., et al. Page 7

SFS argues that it qualifies as FBD’s customer because SFS “had an account with FBD

that was fraudulently opened.” It asserts that the account had to have been set up using SFS’s

name and tax identification number. However, SFS does not allege that it opened the account,

that it deposited money in the account, that it had authority to withdraw funds from the account,

or that it received statements from the account. We decline to adopt a new rule that being the

victim in a fraudulent scheme involving an imposter bank account causes the victim to become a

customer of the bank.

V.

SFS’s second claim is for fraud. Under Michigan law,

The general rule is that to constitute actionable fraud it must appear: (1) That

defendant made a material representation; (2) that it was false; (3) that when he

made it he knew it was false, or made it recklessly, without any knowledge of its

truth and as a positive assertion; (4) that he made it with the intention that it

should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and

(6) that he thereby suffered injury. Each of these facts must be proved with a

reasonable degree of certainty, and all of them must be found to exist; the absence

of any one of them is fatal to a recovery.

Titan Ins. Co. v. Hyten, 817 N.W.2d 562, 567-68 (Mich. 2012). “[F]raud requires a

misrepresentation about the past or present.” Lawrence M. Clarke, Inc. v. Richco Constr., Inc.,

803 N.W.2d 151, 162 (Mich. 2011).

Fed. R. Civ. P. 9(b) establishes a heightened pleading standard for fraud allegations: “In

alleging fraud or mistake, a party must state with particularity the circumstances constituting

fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be

alleged generally.” The purposes of Rule 9(b) are (1) to alert defendants to the particulars of the

allegations against them so they can intelligently respond; (2) to prevent “fishing expeditions”;

(3) to protect defendants’ reputations against fraud allegations; and (4) to whittle down

potentially wide-ranging discovery to only relevant matters. Chesbrough v. VPA, P.C., 655 F.3d

461, 466-67 (6th Cir. 2011). Accordingly, to satisfy Rule 9(b), a plaintiff must generally

(1) specify the time, place, and content of the alleged misrepresentation; (2) identify the

fraudulent scheme and the fraudulent intent of the defendant; and (3) describe the injury resulting

from the fraud. U.S. ex rel. SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496, 504 (6th Cir. 2008).

No. 14-1104 SFS Check v. First Bank of Del., et al. Page 8

Here, SFS has alleged that FBD, through Bastable, intentionally misrepresented to Kopko

during the August 2010 telephone conversation that FBD did not have an account in SFS’s name.

However, as the district court found, SFS has not successfully alleged that the company’s injury

resulted from the alleged fraud. The phone call happened after Fifth Third bank notified SFS

that it had decided to cancel the account. The injury that led to SFS’s bankruptcy occurred

before Bastable and Kopko ever communicated. Taking the facts as pleaded, SFS has not stated

a fraud claim for which relief can be granted.

SFS’s alternative theory of fraud is that FBD knew as early as May 2010 that its SFS

account was processing illegal gambling transactions. SFS says FBD should have discovered

that the account was fraudulent and contacted SFS. Again, this fails to articulate a plausible

fraud claim. A failure to investigate the nature of the alleged SFS account or to hunt down and

contact the real SFS does not amount to an intentional “misrepresentation about the past or

present.” Lawrence M. Clarke, Inc., 803 N.W.2d at 162.

AFFIRMED.