McConico v Wal-Mart Stores Inc

Filing 58

MEMORANDUM OPINION AND ORDER- Walmart Inc.'s Motion to Dismiss (Doc. 29 ) is GRANTED, and all claims stated against Walmart Inc. are DISMISSED with prejudice; Green Dot Bank's Motion to Dismiss in Part Pltf's Original andAmended Compl aints (Doc. 32 ) is GRANTED, and all claims stated against GreenDot Bank are DISMISSED with prejudice; Pltf's Motion to Amend Complaint (Doc. 48 ) is DENIED; Pltf's Motion to Amend Pltf's Motion for an Order to Warden Mary Cook to Provide McConico Usage of a Typewriter (Doc. 53 ) is MOOT; The Motions to Compel (Docs. 54 , 55 , 56 & 57 ) are MOOT. Signed by Magistrate Judge Gray M Borden on 5/28/20. (MRR, )

FILED
2020 May-28 AM 09:30
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
JAMES MCCONICO, JR.,
Plaintiff,
v.
WAL-MART STORES, INC., and
GREEN DOT BANK,
Defendants.

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Case No. 7:19-cv-1600-GMB

MEMORANDUM OPINION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the jurisdiction
of a United States Magistrate Judge. Pending before the court are Defendants’
Motions to Dismiss (Docs. 29 & 32), Plaintiff’s Motions for Summary Judgment
(Docs. 42 & 44), Plaintiff’s Motion to Amend Complaint (Doc. 48), Plaintiff’s
Motion to Amend Plaintiff’s Motion for an Order to Warden Mary Cook to Provide
McConico Usage of a Typewriter (Doc. 53), and Plaintiff’s Motions to Compel
(Docs. 54, 55, 56 & 57). After careful consideration of the parties’ submissions, the
applicable law, and the record as a whole, the court finds that this case is due to be
dismissed.
I. JURISDICTION AND VENUE
The court has subject matter jurisdiction over the claims in this lawsuit
pursuant to 28 U.S.C. § 1332. The parties do not contest personal jurisdiction or that
venue is proper in the Northern District of Alabama. The court finds adequate

allegations to support both.
II. BACKGROUND
Resolving all factual inferences in favor of Plaintiff James McConico, Jr., the
nonmovant, the facts are as follows.
Plaintiff James McConico, Jr. sues Defendant Wal-Mart Stores, Inc.
(“Walmart”) and Defendant Green Dot Bank. Doc. 18. McConico’s claims relate to
a debit card program. The court construes McConico’s amended complaint (Doc.
18) as asserting claims for breach of contract, negligence, and fraud.
Walmart and Green Dot Bank entered into a joint enterprise using Walmart’s
name and marketing network to create a Green Dot Bank debit card. Doc. 18 at 1.
The debit card is known as “the Walmart MoneyCard.” Doc. 29-2. In 2017,
McConico visited a Walmart website and applied online for a money card. Doc. 42
at 9. The cardholder agreement for the money card begins by informing customers
that the agreement “is between you and Green Dot Bank, the issuer of your Card.”
Doc. 29-1 at 2. The agreement also provides the following information:
[F]ederal law requires all institutions to obtain, verify, and record
information that identifies each person who registers a Card. When you
register your Card, we will ask for your name, address, date of birth,
Social Security number, phone number and other information that will
allow us to identify you. We may also ask to see your driver’s license
or other identifying documents. . . . If we are unable to verify your
identity, we may choose to permit you to use the Temporary Card until
the money on the Temporary Card has been fully spent, but you will
not receive a Personalized Card.
Docs. 18 at 2−3 & 32-1 at 3.
2

When he applied online for the money card, McConico attempted to review
this cardholder agreement, but he received an “error has occurred” message and was
unable to read the document. Doc. 42 at 10. Nevertheless, he checked the box
indicating that he had read and agreed to the cardholder agreement. Doc. 42 at 10.
McConico then selected “Get My Card,” and the website accepted his request for a
money card. Doc. 42 at 10. McConico does not allege that he told Walmart about
the error message, or that his inability to read the cardholder agreement affected his
decision to request a money card. He ultimately obtained the card. Doc. 42 at 10.
At some point, McConico lost his money card and requested another one. Doc.
18 at 2. McConico received the replacement card, but the defendants could not
verify his identity and denied him the use of the card. Doc. 18 at 2. McConico
therefore asked that his account be closed and the balance refunded to him. Doc. 18
at 2. A customer service representative told McConico that he could not use the
replacement card or remove money from his account unless his identity could be
verified. Doc. 18 at 2. The customer service representative insisted that McConico
could not use or obtain his money unless he identified himself. Doc. 18 at 2.
McConico claims that Walmart gave him false information to lure him into
enrolling in the Walmart Money Card Program. Doc. 18 at 2.

Specifically,

McConico alleges that Walmart’s failure to monitor and supervise the use of its name
falsely led him to believe he was doing business with Walmart, not Green Dot Bank.
Doc. 18 at 1. He also alleges that Walmart falsely led him to believe that in the event
3

there was an identification issue with his money card he still would be allowed to
spend the funds on his card, close his account and spend the funds, or get a refund
for the balance on the card. Doc. 18 at 1. Defendants “defrauded, misl[ed], and
baited [him by] offering their [Walmart] money card without adequately disclosing
that they could seize and unlawfully control McConico’s money and deny him the
right to close his account in the event of financial or identity disputes between
McConico and defendants.” Doc. 18 at 3. “Due to [Walmart’s] false, misleading
advertisement and breach of contract of material facts regarding the securing, use
and control his money, McConico [was deprived] of interest, the ability to buy
school needs for his grandchildren, and usage of his money in other investments.”
Doc. 18 at 3. For these claims, McConico seeks $1,150,000 in damages.
III. STANDARD OF REVIEW
Summary judgment1 is appropriate “if the movant shows that there is no

1

Both Defendants attached exhibits to their motions to dismiss, and Plaintiff has attached exhibits
to his response. Specifically, Defendants attached the cardholder agreement and screen captures
of the Walmart website to their motions to dismiss. Docs. 29-1, 29-2, 32-1 & 32-2. In his
responses, McConico attached his affidavit and more screen captures of the Walmart website.
Docs. 42 & 44. Typically, a court “must convert a motion to dismiss into a motion for summary
judgment if it considers materials outside the complaint.” Day v. Taylor, 400 F.3d 1272, 1275–76
(11th Cir. 2005). Defendants contend that the motion does not have to be converted if the materials
are central to a plaintiff’s claims and are not in dispute. Docs. 29 at 6 & 32 at 3 (citing Korman v.
Iglesias, 2019 WL 2537622, at *2 (11th Cir. June 20, 2019)). Although McConico does not
dispute the contents of the cardholder agreement, he does dispute in his affidavit that he read it.
Doc. 42 at 10. Defendants argue that the court should not consider this affidavit because it is an
improper attempt to amend the complaint. Doc. 49 at 6. But Defendants also argue that McConico
should not be given another chance to amend his complaint to include the allegations in his
affidavit. Doc. 49 at 8. In light of this dispute, the court will convert the motions to dismiss (Docs.
29 & 32) into motions for summary judgment, and will consider the extrinsic materials filed both
by Defendants and McConico.
4

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “The purpose of summary judgement is to
separate real, genuine issues from those which are formal or pretended.” Tippens v.
Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986). “Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute of material fact is genuine only if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. at 248.
The moving party “always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate the absence of a genuine
[dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (internal quotation marks omitted). In responding to a properly supported
motion for summary judgment, the nonmoving party “must do more than simply
show that there is some metaphysical doubt as to the material fact.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Indeed, the
nonmovant must “go beyond the pleadings” and submit admissible evidence
demonstrating “specific facts showing that there is a genuine [dispute] for
trial.” Celotex, 477 U.S. at 324 (internal quotation marks omitted). If the evidence
is “merely colorable, or is not significantly probative, summary judgment may be
5

granted.” Anderson, 477 U.S. at 249 (citations omitted).
When a district court considers a motion for summary judgment, it “must view
all the evidence and all factual inferences reasonably drawn from the evidence in the
light most favorable to the nonmoving party, and must resolve all reasonable doubts
about the facts in favor of the nonmovant.” Rioux v. City of Atlanta, Ga., 520 F.3d
1269, 1274 (11th Cir. 2008) (citation and internal quotation marks omitted). The
court’s role is not to “weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
“If a reasonable fact finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a genuine issue of material
fact, then the court should not grant summary judgment.” Allen v. Bd. of Pub. Ed.
for Bibb County, 495 F.3d 1306, 1315 (11th Cir. 2007) (citation omitted).
Importantly, if the nonmovant “fails to adduce evidence which would be sufficient
. . . to support a jury finding for [the nonmovant], summary judgment may be
granted.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1370
(11th Cir. 1997) (citation omitted).
However, any “specific facts” pled in a pro se plaintiff’s sworn complaint
must be considered in opposition to summary judgment. See Caldwell v. Warden,
FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014) (citing Perry v. Thompson,
786 F.2d 1093, 1095 (11th Cir. 1986)). Additionally, “pro se pleadings are held to
a less stringent standard than pleadings drafted by attorneys and will, therefore, be
6

liberally construed.” Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).
IV. DISCUSSION
The court construes the amended complaint as asserting claims for breach of
contract,2 negligence, and fraud against Walmart, and claims for breach of contract
and fraud against Green Dot Bank. McConico argues that Walmart was negligent,
fraudulent, and in breach of its contract because he was unable to access the
cardholder agreement; because Walmart did not ensure that Green Dot Bank
complied with the agreement; and because Walmart did not disclose that the money
card operated under Green Dot Bank. Docs. 18, 42 & 44. He argues that Green Dot
Bank fraudulently induced him to enroll in the money card program and that it
breached the cardholder agreement. Docs. 18 & 42. The court first will address
McConico’s breach of contract claims, then his negligence claims, and finally his
fraud claims. Ultimately, the court finds that all claims against Walmart and Green
Dot Bank are due to be dismissed.
A.

Breach of Contract
To demonstrate a breach of contract claim, a plaintiff must show (1) the

existence of a contract, (2) his performance of that contract, (3) breach of the contract
by the other party, and (4) damages. Berneike v. CitiMortgage, Inc., 708 F.3d 1141,

2

“[F]ederal courts sitting in diversity apply state substantive law and federal procedural law.”
Gasperini v. Ctr. for Hum., Inc., 518 U.S. 415, 427 (1996). This is a diversity suit, so the court
will apply state law to McConico’s state-law claims.
7

1151 (10th Cir. 2013).3 “As a general rule, none is liable upon a contract except
those who are parties to it.” Shire Dev. v. Frontier Invs., 799 P.2d 221, 223 (Ut. Ct.
App. 1990). Generally, a defendant “cannot be liable for any alleged breach of a
contract to which [it] was not a party.” Catlin v. Salt Lake City Sch. Dist., 2014 WL
4662466, at *8 (D. Utah Sept. 18, 2014).
1.

Breach of Contract Claim Against Walmart

McConico argues that Walmart was in breach of a contract because it did not
ensure that Green Dot complied with the portion of a cardholder agreement allowing
McConico to spend the funds on his card even though his identity could not be
verified. Docs. 18, 42 & 44. Of course, this claim can only be successful if Walmart
was party to a contract with McConico, which he has failed to demonstrate. Indeed,
his negligence and fraud claims are based on the premise that Walmart fraudulently
lead him to believe it was a party to the contract when it was not. In neither his
amended complaint nor his responses to the motions to dismiss does McConico
demonstrate or argue that Walmart was ever a party to any contract with him. And
he does not argue that Green Dot Bank acted with the apparent authority to enter
into a contract on Walmart’s behalf. Instead, McConico’s fraud claims acknowledge
that Walmart did not enter into a contract with him. If Walmart did not enter into a
contract with McConico, it cannot have breached a contract with McConico.
3

Walmart argues that Utah law applies to McConico’s breach of contract claims pursuant to the
terms of the cardholder agreement. See Doc. 29-1 at 11. The court agrees and McConico does not
argue otherwise. Alabama law governs the remaining state-law claims.
8

Accordingly, the breach of contract claim asserted against Walmart is due to be
dismissed. See Catlin, 2014 WL 4662466, at *8 (dismissing with prejudice a breach
of contract claim where defendant was not party to a contract with plaintiff).
2.

Breach of Contract Claim Against Green Dot Bank

McConico argues that Green Dot Bank breached the cardholder agreement.
Doc. 42 at 3. This claim fails because the undisputed evidence shows that Green
Dot Bank complied with the terms of the cardholder agreement. McConico has
shown that he was party to a contract with Green Dot Bank because he checked a
box on a website indicating that he agreed to terms of the cardholder agreement.4
But he has not shown that Green Dot Bank breached that cardholder agreement.
McConico complains that Green Dot Bank refuses to release the funds in his account
because of an identity dispute. Doc. 42 at 4. However, the terms of the cardholder
agreement allow Green Dot Bank to take this precise action. The cardholder
agreement provides that Green Dot Bank will seek identifying information after
registering a new card (like McConico’s replacement card). Doc. 32-1 at 3. If a

4

The court finds that McConico entered into a binding contract. “Today, virtually every Internet
user is familiar with what have become known as clickwrap agreements—agreements formed by
requiring a computer user to consent to any terms or conditions by clicking on a dialog box on the
screen in order to proceed with a transaction.” Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d
1325, 1327 (11th Cir. 2016) (internal quotation marks and citation omitted). While few Alabama
state courts have addressed clickwrap agreements, Alabama contract law principles support their
enforceability. “Under Alabama law there is no requirement that a contract contain a signature to
demonstrate assent; the existence of a contract may be inferred from external and objective
manifestations of assent.” Conference Am., Inc. v. Conexant Sys., Inc., 508 F. Supp. 2d 1005, 1014
(M.D. Ala. 2007). By checking a box indicating that he read and agreed to the terms of the
cardholder agreement, McConico provided an external and objective manifestation of assent to the
contract.
9

person’s identity cannot be verified, it is within Green Dot Bank’s discretion to
permit or deny use of the funds in the customer’s money card account. Doc. 32-1 at
3 (“If we are unable to verify your identity, we may choose to permit you to use the
[funds]. . . until the money . . . has been fully spent.”). Thus, Green Dot Bank strictly
complied with the contract by attempting to verify McConico’s identity, and then
refusing to permit him to use the funds when he could not identify himself. Because
Green Dot Bank has not violated the cardholder agreement, it has not breached its
contract with McConico, and the breach of contract claim against Green Dot Bank
is due to be dismissed. See Oakwood Vill. LLC v. Albertsons, Inc., 104 P.3d 1226
(Utah 2004) (affirming dismissal of breach of contract claims where defendant did
not violate any of the duties for which the parties bargained).
B.

Negligence
1.

Negligence Claim Against Walmart

Under Alabama law, there are four elements for a claim of negligence:
(1) duty, (2) breach of duty, (3) proximate cause, and (4) injury. Edmonson v. Cooper
Cameron Corp., 374 F. Supp. 2d 1103, 1106 (M.D. Ala. 2005). McConico alleges
that Walmart negligently failed to ensure that Green Dot Bank complied with the
agreement regarding his replacement money card. Doc. 18 at 1. But the law does
not recognize negligence claims predicated on a breach of contract. See Liveoak v.
LoanCare, LLC, 2019 WL 5864139, at *2 (N.D. Ala. Nov. 8, 2019) (“Alabama law
does not recognize claims of negligence arising out of breach of contractual
10

duties.”). “[C]ourts sitting in Alabama . . . have consistently concluded that when
the duty allegedly breached is the duty created by the contract itself as opposed to
the general duty of care owed to everyone, the court must treat the claim as a breach
of contract and not as a tort.” Halbert v. Credit Suisse AG, 402 F. Supp. 3d 1288,
1234 (N.D. Ala. 2019). Thus, when an offending party violates a contractual
obligation, the wronged party may bring a breach of contract claim, but not a
corresponding negligence claim. Because the law does not recognize negligence
claims resulting from a breach of contract, McConico cannot recover on the theory
that Walmart was negligent by breaching a contract relating to the money card
program. See Blake v. Bank of Am., N.A., 845 F. Supp. 2d 1206, 1210 (M.D. Ala.
2012) (holding that a plaintiff cannot maintain a tort action where the alleged
negligence consists of the defendant’s failure to perform a contractual obligation).
2.

Negligent Misrepresentation Claim Against Walmart

If McConico is asserting a negligent misrepresentation claim, he must prove
(1) that a false representation was made, (2) that it concerned a material fact, (3) that
the plaintiff reasonably relied on the false representation, and (4) that actual injury
resulted from that reliance. Halbert v. Credit Suisse AG, 402 F. Supp. 3d 1288, 1325
(N.D. Ala. 2019). Here, McConico has not demonstrated that Walmart made a false
representation. McConico alleges that Walmart provided him false information by
failing to inform him that Green Dot was the true contracting party. Doc. 18 at 2.
Additionally, McConico alleges that Walmart falsely told him that would be able to
11

use the funds on his money card despite any identity disputes. Doc. 18 at 3.
However, McConico has not provided any evidence to support these claims, and the
record evidence belies his assertions.
First, McConico has not presented any evidence demonstrating that Walmart
represented to him that it owned and operated the money card. He does not claim
that a Walmart employee told him that Walmart controlled the money card. He does
not point to a notice on the Walmart website demonstrating that Walmart owned and
operated the money card. He does not provide any billing statements indicating that
Walmart was in control of the funds on the money card. He provides no evidence
whatsoever to support his belief that Walmart, not Green Dot, was responsible for
the issuance of the money card.
Second, McConico has not presented any evidence supporting the assertion
that he would be allowed to spend the funds in his account notwithstanding an
identity dispute.

Again, he introduces no employee statements, no Walmart

advertisements, and no webpages indicating that he would be allowed to use his
replacement card without providing identification. He provides no explanation for
why he believed that he would be able to spend the funds in his account in the event
of an identification issue. Of course, McConico may have assumed that Walmart
was the card issuer or that he would not have to provide identification, but
assumptions by one party are not representations by another.
Next, the undisputed cardholder agreement makes clear that (1) Green Dot is
12

the contracting party and (2) that identification may be required when registering a
new card or using a temporary card. Doc. 29-1. In an attempt to sidestep the terms
of the agreement, McConico claims that he was unable to read the cardholder
agreement because of a webpage error. Doc. 42 at 10.

Even if McConico

encountered an error on the website preventing him from reading the cardholder
agreement, this has no bearing on whether Walmart made a false representation.
“[T]o the extent that [McConico’s] claims are based on representations made by
[Walmart] that accurately reflect [the cardholder agreement], plaintiff has not stated
a claim for . . . negligent misrepresentation because there has been no false
representation.” Fowler v. Provident Life & Accident Ins. Co., 256 F. Supp. 2d 1243,
1247 (N.D. Ala. 2003).

Supported only by legal conclusions and no proof,

McConico’s negligent representation claim cannot survive.
C.

Fraud
1.

Fraud Claims

To show fraud, McConico must demonstrate a false representation concerning
a material existing fact, reliance upon that representation, and damage suffered as a
result. See Standifer v. Best Buy Stores, L.P., 364 F. Supp. 3d 1286, 1298 (N.D. Ala.
2019). “A false representation even if made innocently or by mistake operates as a
legal fraud if it is a material fact that is acted upon with belief in its truth.” Id.
McConico asserts that Green Dot Bank and Walmart “baited” him into
believing (1) that he was doing business with Walmart and (2) that he would be
13

allowed to spend the funds in his account if there was an identification issue. Doc.
18 at 1. But, as discussed above, McConico has not demonstrated that Walmart
made any representation of the sort. He has not provided any evidence showing that
Walmart made a false representation, and the record evidence negates McConico’s
claims that Walmart lured him into believing that Walmart operated the money card
or would permit him to spend the funds in his account without identification. See
Doc. 29-1. Rather, the cardholder agreement reveals that Walmart did not control
the money card, and that identification might be necessary.
The same goes for Green Dot Bank. McConico has not presented any
evidence demonstrating that Green Dot Bank made a false representation to him.
Instead, the undisputed cardholder agreement shows that Green Dot Bank acted in
accordance with any representations it made to McConico. See Doc. 32-1.
A false representation is a requisite to proving fraud. See Marshall Durbin
Farms, Inc. v. Landers, 470 So. 2d 1098, 1101 (Ala. 1985).

Without one,

McConico’s fraud claims are not viable. Because McConico has not shown that
Walmart or Green Dot Bank made a false representation to him, he cannot maintain
a fraud claim against either defendant.
2.

Fraudulent Suppression Claims

Any fraudulent suppression claim also fails. “To succeed on a fraudulent
suppression claim, a plaintiff must demonstrate: (1) a duty on the part of the
defendant to disclose facts; (2) concealment or nondisclosure of material facts by the
14

defendant; (3) inducement of the plaintiff to act; and (4) action by the plaintiff to his
or her injury. Standifer, 364 F. Supp. 3d at 1300. In this context, “the well settled
duty-to-read rule . . . states that a plaintiff has a general duty to read the documents
received in connection with a particular transaction along with a duty to inquire and
investigate.” Alfa Life Ins. Corp. v. Reese, 185 So. 3d 1091, 1103 (Ala. 2015)
(internal quotation marks and citation omitted). “[A]ny adult of sound mind capable
of executing a contract necessarily has a conscious appreciation of the risk associated
with ignoring documents containing essential terms and conditions related to the
transaction.” Id.
Here, McConico cannot successfully argue that Walmart or Green Dot Bank
concealed material facts when he does not have any evidence of fraudulent
concealment and when he did not comply with his duty to investigate the cardholder
agreement. McConico claims that he was never given the opportunity to read the
cardholder agreement due to a website malfunction, but he has no proof that the
defendants caused the malfunction or were even aware of it.

And certainly

McConico did nothing to investigate the cardholder agreement or even to notify
Walmart or Green Dot Bank of his inability to read it. He has not offered any
evidence that he asked a Walmart employee or Green Dot Bank or representative
about the error, contacted customer support for the money card, or browsed the
Walmart website in effort to find the agreement. Neither Walmart nor Green Dot
Bank thwarted any attempt to obtain the agreement after the electronic malfunction,
15

because McConico made no attempt to obtain the agreement after deciding to move
forward with the transaction without first reading it. Ultimately, McConico did not
conduct any investigation at all to discover the terms of the cardholder agreement,
and he has not presented any evidence demonstrating that Walmart or Green Dot
Bank fraudulently concealed the agreement by an electronic malfunction.
McConico cannot maintain a fraudulent suppression claim when he has no proof that
the electronic malfunction was purposeful, and when he checked the box
affirmatively indicating that he had read and agreed to terms of the cardholder
agreement.5
To conclude, McConico has not demonstrated that Walmart was party to a
contract with him or that Green Dot Bank violated the terms of its contract with him.
He has not demonstrated that Walmart or Green Dot Bank made a false
representation to him or induced him to act by concealing material information.
Accordingly, his breach of contract, negligence, and fraud claims against Walmart
and Green Dot Bank are due to be dismissed.

5

A literate person who signs a document without reading it cannot avoid the effect of his signature
because he is not informed of the document’s contents. See Banks v. SCI Ala. Funeral Servs., Inc.,
801 So. 2d 20, 25 (Ala. Civ. App. 2001). Here, McConico chose to check the box indicating that
he had read the cardholder agreement and agreed to the terms of the cardholder agreement, and he
then proceeded to select “get my money card.” Doc. 42 at 10. McConico cannot avoid the effect
of this choice by now claiming he was not informed of the cardholder agreement’s terms.
16

D.

McConico’s Motions for Summary Judgment
Pursuant to the Federal Rules of Civil Procedure, motions must state with

particularity the grounds for seeking the order and state the relief sought. Fed. R.
Civ. P. 7(b)(1)(B)–(C). Failure to do so prevents “motions” from being motions at
all. See Newton v. Duke Energy Fla., LLC, 895 F.3d 1270, 1277 (11th Cir. 2018).
McConico titles each of his responses to Defendants’ motions to dismiss as
“Plaintiff’s Response to Defendant Wal-Mart, Inc. and Green Dot Bank’s Motion to
Dismiss and Plaintiff’s Motion for Summary Judgment.” Docs. 42 & 44. Despite
the titles, nowhere in his responses does McConico mention his “motions for
summary judgment.” He does not discuss the summary judgment standard, he does
not identify the claims for which he seeks summary judgment, and he does not
explain why he is entitled to summary judgment. Furthermore, at the end of his
responses, McConico requests that the case be set for a jury trial. Docs. 42 at 6 & 44
at 6. McConico’s failure to state with particularity the grounds for seeking summary
judgment renders his motions for summary judgment procedurally deficient. See
Fed. R. Civ. P. 7(b)(1)(B)–(C). Accordingly, to the extent they are intended to be
motions, McConico’s motions for summary judgment (Docs. 42 & 44) are due to be
denied.
E.

Motion to Amend Complaint
McConico also seeks leave to amend his complaint for a second time. Doc.

48. “Leave to amend a complaint shall be freely given when justice so requires.”
17

Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993) (citing Fed. R. Civ. P. 15(a)).
“While a decision whether to grant leave to amend is clearly within the discretion of
the district court, a justifying reason must be apparent for denial of a motion to
amend.” Id. “In the absence of any apparent or declared reason—such as undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of the amendment, etc.—the
leave sought should, as the rules require, be freely given.” Foman v. Davis, 371 U.S
178, 182 (1962).
The court has reviewed McConico’s motion and his proposed second
amended complaint. Doc. 48-1.

The court also has reviewed McConico’s

supplemental response (filed without leave of court) which contains additional
amendments to the complaint but is not filed as a motion. Doc. 52. In his motion to
amend, McConico does not provide any explicit justification for filing a second
amended complaint. Doc. 48. Indeed, he does not even explain why he wants to
amend his complaint. And the proposed amended complaint does little more than
mirror McConico’s arguments in response to the pending motions to dismiss. It does
not provide additional facts to support McConico’s claims, the substance of which
appear in the first amended complaint.
McConico argues that he should be granted leave to amend because he has
not amended his complaint after service on Green Dot Bank and because he has not
18

had an adequate opportunity to conduct discovery. Doc. 52 at 2. These arguments
are insufficient to justify leave to amend when amendment would be futile.
McConico seeks to add claims of negligent supervision and unjust enrichment, but
he does not add any new facts to support these claims and the factual content already
before the court does not support recovery under the theories of negligent
supervision 6 or unjust enrichment.7
For these reasons, the court finds that the proposed amended complaint (Doc.

6

McConico’s reply does not allege a valid negligent supervision claim. “Alabama law is clear
that the tort of negligent supervision or training requires as an element the existence of a masterservant relationship.” Ott v. City of Mobile, 169 F. Supp. 2d 1301, 1315 (S.D. Ala. 2001). To prove
negligent supervision, a plaintiff must demonstrate that the master knew, or in the exercise of
ordinary care should have known, that its servant was incompetent. See Buckentin v. SunTrust
Mortg. Corp., 928 F. Supp. 2d 1273, 1288 (N.D. Ala. 2013). Though McConico alleges that
Walmart failed to supervise Green Dot, he has not shown that Walmart had a duty to supervise
Green Dot. Because he has not demonstrated a master-servant relationship between Green Dot
Bank and Walmart, McConico’s attempt to allege a negligent supervision claim is futile.
7 McConico’s reply also does not allege a valid unjust enrichment claim. “The elements of an
unjust enrichment claim under Alabama law are that the (1) defendant knowingly accepted or
retained a benefit (2) provided by another (3) who has reasonable expectation of compensation.”
See Tolbert v. High Noon Prods., LLC, 2019 WL 127363, at *7 (N.D. Ala. Jan. 8, 2019) (citing
Portofino Seaport Village, LLC v. Welch, 4 So. 3d 1095, 1098 (Ala. 2008)). “The essence of the
theor[y] of unjust enrichment or money had and received is that a plaintiff can prove facts showing
that defendant holds money which, in equity and good conscience, belongs to plaintiff or holds
money which was improperly paid to defendant because of mistake or fraud.” Hartford Fire Ins.
Co. v. Ala. Pain Ctr., LLC, 2018 WL 7286500, at *6 (N.D. Ala. Aug. 2, 2018). Walmart is a
retailer authorized to sell money cards but does not control or own the funds in the money card
accounts. Doc. 29-1. Thus, Walmart does not possess the funds in McConico’s money card
account, and has not been unjustly enriched by those funds. And while the evidence shows that
Green Dot Bank accepted money on McConico’s money card, it does not show that Green Dot
Bank is improperly holding money that belongs to McConico. Instead, the evidence demonstrates
that Green Dot Bank is holding money pursuant to the terms of the cardholder agreement with
McConico. Doc. 42 at 10. McConico can access those funds by providing identification as
required by the cardholder agreement. Neither his amended complaint (Doc. 18) nor his reply
(Doc. 52) demonstrates that the defendants are holding money that in good conscience belongs to
him. And, for the reasons discussed above, McConico also has not shown that the defendants were
improperly paid because of mistake or fraud. Accordingly, his attempt to bring an unjust
enrichment claim is futile.
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48-1) and McConico’s reply (Doc. 52) would not cure any deficiencies in the first
amended complaint. Nowhere in his filings does McConico sufficiently allege or
prove that the defendants acted fraudulently in a manner consistent with a breach of
contract, negligence, fraud, or unjust enrichment. While leave to amend must be
freely given, it is within the court’s discretion to deny leave to amend where
amendment would be futile. See Henley v. Turner Broad. Sys., Inc., 267 F. Supp. 3d
1341, 1364 (N.D. Ga. 2017) (“Because the Proposed Amended Complaint would
require dismissal for the same reasons as the initial Complaint, Plaintiffs’ Motion to
Amend is denied as futile.”).

Finding no sufficient justification to warrant

amendment and that amendment would be futile, the court concludes that the motion
to amend (Doc. 48) is due to be denied.
F.

Motion for Access to a Typewriter
McConico previously filed a Motion for an Order to Warden Mary Cook

(Doc. 46) requesting that the court compel Cook to allow him access to a typewriter
so that he could comply with court’s initial order requiring documents to be typed.
Doc. 39. The court denied that motion and allowed McConico to handwrite his
filings. Doc. 51. His second request for an order requiring Cook to grant him access
to a typewriter is moot for the same reason.
G.

Motions to Compel
McConico has filed four motions asking the court to compel Defendants to

respond to his interrogatories and requests for production. Docs. 54, 55, 56 & 57.
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But discovery has been stayed in this case. Doc. 51. Moreover, for the reasons
discussed above, McConico’s claims are due to be dismissed. Accordingly, the court
finds that the Motions to Compel (Docs. 54, 55, 56 & 57) are moot.
V. CONCLUSION
For these reasons, it is ORDERED as follows:
1.

Walmart Inc.’s Motion to Dismiss (Doc. 29) is GRANTED, and all

claims stated against Walmart Inc. are DISMISSED with prejudice;
2.

Green Dot Bank’s Motion to Dismiss in Part Plaintiff’s Original and

Amended Complaints (Doc. 32) is GRANTED, and all claims stated against Green
Dot Bank are DISMISSED with prejudice;
3.

Plaintiff’s Motion to Amend Complaint (Doc. 48) is DENIED;

4.

Plaintiff’s Motion to Amend Plaintiff’s Motion for an Order to Warden

Mary Cook to Provide McConico Usage of a Typewriter (Doc. 53) is MOOT; and
5.

The Motions to Compel (Docs. 54, 55, 56 & 57) are MOOT.

A final judgment will issue separately.
DONE and ORDERED on May 28, 2020.
_________________________________
GRAY M. BORDEN
UNITED STATES MAGISTRATE JUDGE

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