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Walkingstick v. Simmons Bank

United States District Court, W.D. Missouri, Southern Division

January 16, 2020

DANNY L WALKINGSTICK, WHITNYE A FORT, Plaintiffs,
v.
SIMMONS BANK, Defendant.

          ORDER

          ROSEANN A. KETCHMARK, JUDGE.

         Before the Court is Defendant Simmons Bank (“Simmons”)'s motion to dismiss for failure to state a claim. (Doc. 46.) The motion is fully briefed. (Docs. 47, 48, 56.) After careful consideration, the motion is DENIED.

         Background

         Plaintiff brings this putative class action for breach of contract, breach of the covenant of good faith and fair dealing, and for unjust enrichment. This case arises out of allegations that Simmons charged overdraft fees on transactions which did not overdraw Plaintiffs' accounts. Plaintiffs had or have checking accounts with Simmons and opted into Simmons' standard overdraft practices. Pursuant to the terms and conditions (Doc. 39-1) (the “Deposit Agreement”) and the fee schedule (Doc. 39-2), Simmons charged a $35 per item overdraft fee for transactions that overdrew an account. At the heart of this case, is how Simmons calculated a consumer's balance in determining when a customer's account was overdrawn.[1] Plaintiffs claim the Deposit Agreement required Simmons to use a ledger balance method to calculate the balance of Plaintiffs' accounts in determining whether and overdraft fee would apply. (Doc. 48.) Specifically, in the Second Amended Complaint, Plaintiffs allege that Plaintiff Walkingstick, was assessed a $35 overdraft fee on November 1, 2018, even though “his account . . . was not even negative after that ATM transaction.” (Doc. 39, ¶ 19.) Plaintiffs similarly allege that overdraft fees were charged to Plaintiff Fort on eight different occasions, even though the transactions did not “cause the balance on her statement to go negative after the transaction.” (Id., ¶ 22.) Simmons, on the other hand, contends the contract provides for the use of the available balance method. (Doc. 47.) Simmons moves to dismiss each of Plaintiffs' claims for failure to state a claim.

         Legal Standard

         Federal pleading rules provide that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this requirement is “to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Each allegation in a pleading must “be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). “No technical form” is required for pleadings and the Court construes pleadings “so as to do justice[.]” Fed.R.Civ.P. 8(e).

         Rule 8's pleading standard must be read in conjunction with Rule 12(b)(6), which tests a pleading's legal sufficiency. To survive a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for 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 facially plausible where the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Wilson v. Arkansas Dept. of Human Serv., 850 F.3d 368, 371 (8th Cir. 2017) (internal quotation marks and citation omitted). While a complaint does not need to include detailed factual allegations, the complaint must allege more than a sheer possibility that a defendant acted unlawfully to survive a motion to dismiss. Wilson, 850 F.3d at 371 (citation omitted). When considering a motion to dismiss for failure to state a claim, the well-pled allegations in the complaint must be accepted as true and construed in the light most favorable to the nonmoving party. Osahar v. U.S. Postal Service, 263 Fed.Appx. 753, 864 (8th Cir. 2008).

         Discussion

         In arguing that all claims should be dismissed, Simmons contends that Plaintiffs failed to plead compliance with the notice and cure provision of the Deposit Agreement and that Plaintiffs failed to state a claim on each of their three claims. The Court will address each of Simmons' arguments in turn.

         I. Notice and Cure Provision

         Simmons first argues Plaintiffs failed to plead compliance with the notice and cure provision of the Deposit Agreement. (Doc. 47, p. 6.) Such provision occurs on pages 10 and 11 of the 58-page Deposit Agreement and reads as follows:

Your duty to report errors- In addition to your duty to review your statements for unauthorized signatures, alterations and forgeries, you agree to examine your statement with reasonable promptness for any other error - such as an encoding error. In addition, if you receive or we make available either your items or images of your items, you must examine them for any unauthorized or missing indorsements or any other problems. You agree that the time you have to examine your statement and items and report to us will depend on the circumstances. However, this time period shall not exceed 60 days. Failure to examine your statement and items and report any errors to us within 60 days of when we first send or make the statement available precludes you from asserting a claim against us for any errors on items identified in that statement and as between you and us the loss will be entirely yours.

(Doc. 39-1) (emphasis in original). Page 31 of the Deposit Agreement also contains a section entitled ERROR RESOLUTION NOTICE, which states in relevant part:

In Case of Errors or Questions About Your Electronic Transfers, Call or Write us at the telephone number or address listed in this brochure, as soon as you can, if you think your statement or receipt is wrong or if you need more information about a transfer listed on the statement or receipt. We must hear from you no later than 60 ...

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