DOE et al v. MERRILL LYNCH & CO. et al

Filing 20

MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 8/11/2017. (lcrmc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
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JOHN DOE, et al.,
)
)
Plaintiffs,
)
)
v.
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Civil Action No. 16-253 (RMC)
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BANK OF AMERICA
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CORPORATION, et al.,
)
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Defendants.
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_________________________________
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OPINION
John Doe, “a well-known international figure with a political background,” and
his daughter, Jane Doe, sue the Bank of America Corporation for negligence and breach of
contract (Counts I and II) because, after Mr. Doe’s 34-year personal banking relationship with
Bank of America, both his and his daughter’s accounts were summarily closed.1 Mr. Doe claims
damage to his reputation, alleging that the abrupt and unexplained closing of his account may
suggest to international corporations on whose boards he might serve, that he was engaged in

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Compl. [Dkt. 1] ¶ 3. Before this case was transferred to the present Judge, plaintiffs sought
permission, in a one-paragraph motion, to use pseudonyms because John Doe “sits on numerous
boards of prominent international business entities” and “[h]aving his name published would
damage the relationship he has with those entities.” First Mot. to Use Pseudonyms [Dkt. 2] at 1.
Former Chief Judge Richard W. Roberts denied the motion for failure to “cite or provide any
analysis of the factors that this Court uses to weigh ‘one party’s need for anonymity against the
public’s right of access to court proceedings and the risk of unfairness to the opposing party.’”
3/1/2016 Order [Dkt. 3] at 1 (quoting Doe v. Teti, No. 15-1380, 2015 WL 6689862, at *1
(D.D.C. Oct. 19, 2015)). Plaintiffs filed a motion for reconsideration analyzing the relevant
factors, Mot. for Reconsideration [Dkt. 4], which Chief Judge Beryl Howell reviewed and
granted “upon finding that the plaintiffs have articulated a substantial reason to maintain the
privacy of their names that ‘outweighs the customary and constitutionally-embedded
presumption of openness in judicial proceedings.’” 4/28/2016 Order [Dkt. 5] at 3 (quoting
Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 188 (2d Cir. 2008)).
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illegal financial activities, such as money laundering, which he vehemently denies. See Compl.,
Introduction. Plaintiffs demand an explanation and money damages “for the embarrassment,
reputational damage, and business-related damages” they have suffered.2 See id. ¶¶ 21, 27.
Defendant, Bank of America Corporation, moves to dismiss the complaint. See Mot. to Dismiss
[Dkt. 14].
The Complaint initially named Merrill Lynch, presumably Merrill Lynch, Pierce,
Fenner & Smith, Inc., as a Defendant. In the Opposition, however, Plaintiffs agree to dismiss all
allegations against Merrill Lynch (Counts III and IV) with prejudice. See Opp’n [Dkt. 16] at 2-3
(“In the interest of judicial expediency, Plaintiff agrees to drop Counts III and IV against
Defendant Merrill Lynch with prejudice.”). The Court will dismiss Plaintiffs’ remaining counts
against the Bank of America Corporation for failure to state a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(6).
I. FACTS
John Doe is an American citizen and a resident of Florida. His daughter, Jane
Doe, is an American citizen and a resident of Georgia. Plaintiffs bring this suit against Bank of
American Corporation (BAC)3 as “an attempt by an experienced world diplomat to ascertain the

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Plaintiffs’ reliance on Mr. Doe’s long-standing banking relationship and international status to
support this suit calls into question whether Ms. Doe has made any viable claims. Indeed,
Plaintiffs’ Complaint and Opposition often refers to “Plaintiff” in the singular and “Mr. Doe,”
leading Bank of America Corporation to argue that Mr. Doe “effectively admits that Jane Doe
has no valid claims.” Reply [Dkt. 17] at 2. Because the Court ultimately finds no viable claims
for either Plaintiff, there is no need to address this argument.
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As further explained below, BAC is a holding company that, at the time of Plaintiffs account
closures, indirectly owned Bank of America, N.A. (BANA). BANA is a nationally chartered
retail bank at which Plaintiffs were retail customers for years. Plaintiffs attribute actions to BAC
that should more appropriately be attributed to BANA. However, because BAC is the only
named Defendant in this action, and for purposes of clarity, the Court will describe the facts as
done by Plaintiffs, who make allegations against BAC and not BANA.
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reason why the banking relationship he had with [BAC] was summarily terminated even though
he had an excellent 34-year banking record with them.” Compl., Introduction. “The only reason
Plaintiff has filed this lawsuit is [BAC’s] adamant refusal to tell him the reasons why his account
was closed.” Id. Therefore, “certain parties (like international conglomerates seeking the
services of reputable board members like [Mr. Doe]) . . . [may] speculate that [Mr. Doe] had
engaged in or was complicit in money-laundering activities.” Id.
Mr. Doe states that during his 34 years of a continuous banking relationship with
BAC, “[t]here were no incidents of bounced checks or incidents of misdirected wire transfers,
and no need to generate any Suspicious Activity Reports (SARs) in connection with activity in
either [his or his daughter’s] account.” Id. ¶ 8. “On March 23, 2015, [Mr. Doe] received notice
of his [BAC] account’s closure, with no reason cited.” Id. ¶ 9. Jane Doe’s account was “closed
at the same time” without explanation. Id. “After much difficulty, explaining, and frustration,
Plaintiff John Doe was finally able to transfer his funds to J.P. Morgan Chase, where he now has
an account.” Id. ¶ 10.
The Complaint alleges that BAC received information during 2014 from “a
newspaper clipping or an inquiry from the U.S. Department of Treasury’s Financial Crimes
Enforcement Network (FinCEN) or another financial institution like Merrill Lynch[,] . . . [which]
appeared to implicate [Mr. Doe] in potential illicit activity.” Id. ¶ 12. Plaintiffs complain that
BAC summarily closed their accounts with no effort to inform them of the accusations against
Mr. Doe or investigate them. Plaintiffs allege that “the bank should have immediately contacted
[Mr. Doe] and investigated the matter in a comprehensive manner . . . to ascertain the veracity of
the allegations of misconduct made about him.” Id. ¶ 13. Through these actions and inactions
BAC is alleged to have violated its “duty to act with reasonable care at all times . . . [b]y closing

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the accounts before affording [Mr. Doe] an opportunity to explain any alleged wrongdoing
disclosed to the bank by federal authorities or other sources.” Id. ¶ 15. Plaintiffs allege that:
[BAC] decided not to investigate the spurious charges because: (a)
[Mr. Doe] maintained a home outside of America where moneylaundering guidelines were not as stringent as in America; (b) there
were additional requirements to maintain this account since he was
a politically exposed person (“PEP”), i.e., SARs would have to be
prepared and sent to Treasury on a regular basis; and (c) [BAC]
knew because monthly SARs would have to be prepared that there
would be an ongoing additional administrative expense to maintain
these accounts.
Id. ¶ 16. In so doing, BAC allegedly breached its covenant of good faith and fair dealing with
Plaintiffs because it chose the less-expensive alternative of unilaterally closing their accounts
without investigation and without informing them of its reasons. See id. Plaintiffs seek a court
order requiring BAC to explain in writing why it closed their accounts and a monetary award to
compensate “for the embarrassment, reputational damage, and business-related damages”
suffered. Id. ¶¶ 21, 27.
BAC responds that that “[t]he Complaint is devoid of any facts alleging any kind
of cognizable relationship at all, contractual or otherwise, between Plaintiffs and BAC.” Mot. to
Dismiss at 8. It explains that BAC is a holding company that, at the time of Plaintiffs’ account
closures, indirectly owned BANA, which is a nationally chartered bank based in North Carolina
with retail banking centers throughout the country. See id. at 2-3. The relevant bank accounts
were opened at BANA, not BAC, and the documents governing those accounts were between
Plaintiffs and BANA. See id. at 8; Reply, Ex. 3, BANA Deposit Agreement and Disclosures
Feb. 6, 2015 [Dkt. 17-3] (2015 BANA Agreement); Reply, Ex. 1, BANA Deposit Agreement

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and Disclosures June 19, 2010 [Dkt. 17-1] (2010 BANA Agreement).4 BANA is not a named
defendant in this action. BAC urges the Court to dismiss the Complaint against BAC on this
basis alone. See Mot. to Dismiss at 8.
Plaintiffs request leave to amend the Complaint against BAC “or against [BANA]
if that is deemed necessary by the Court as the proper named party against whom these claims
should be asserted.” Opp’n at 3. The Court will grant BAC’s Motion to Dismiss and will deny
Plaintiffs’ request to amend because, upon analysis, such an amendment would prove futile.
II. LEGAL STANDARDS
A. Motion to Dismiss
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).
A complaint must be sufficient “to give a 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) (internal
citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff=s
obligation to provide the grounds of his entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. A
court must treat the complaint’s factual allegations as true, “even if doubtful in fact,” id., but a
court need not accept as true legal conclusions set forth in a complaint, see Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim for relief that is “plausible on its face.”

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Defendants attached to their pleadings a 2011 version of the Deposit Agreement and
Disclosures but portions are illegible in the version provided to the Court. See Reply, Ex. 2,
BANA Deposit Agreement and Disclosures Aug. 1, 2011 [Dkt. 17-2]. The Court will therefore
rely on the 2010 and 2015 versions of the Agreement which appear substantially similar to that
of 2011.
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Twombly, 550 U.S. at 570. A complaint must allege sufficient facts that would allow the court
“to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678-79.
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged
in the complaint, documents attached to the complaint as exhibits or incorporated by reference,
and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508
F.3d 1052, 1059 (D.C. Cir. 2007).
B. Motion to Amend
If a plaintiff wants to amend a complaint more than “21 days after service of a
responsive pleading” it may only do so “with the opposing party’s consent or the court’s leave.”
Fed. R. Civ. P. 15(a). Rule 15 instructs courts to “freely give leave when justice so requires,” id;
nevertheless, “the grant or denial of leave to amend is committed to a district court’s discretion.”
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (citing Forman v. Davis, 371 U.S.
178, 182 (1962)). The Supreme Court has stressed that leave to amend should be freely given
“[i]n 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 amendment, etc.” Forman, 371 U.S. at 182, accord Miller v. Gray, No. 13-2018, 2016 WL
8671830, at *2 (D.D.C. Dec. 16, 2016). “The Court may deny leave to amend based on futility
‘if the proposed claim would not survive a motion to dismiss.’” Berry v. Coastal Int’l Sec. Inc.,
No. 12-1420, 2015 WL 13216805, *2 (D.D.C. July 24, 2015) (quoting Rumber v. District of
Columbia, 598 F. Supp. 2d 97, 102 (D.D.C. 2009)). A court may also deny a motion to amend

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“where the only result would be to waste time and judicial resources.” Ross v. DynCorp, 362 F.
Supp. 2d 344, 364 n.11 (D.D.C. 2005).
III. ANALYSIS
A. Motion to Dismiss
Plaintiffs bring two claims against BAC for negligence and breach of contract.
BAC has moved to dismiss these claims for failure to state a claim upon which relief can be
granted, Fed. R. Civ. P. 12(b)(6), noting that the banking relationship described in the Complaint
is between Plaintiffs and BANA, a retail bank indirectly owned by BAC, and not between
Plaintiffs and BAC.
“It is a general principle of corporate law deeply ‘ingrained in our economic and
legal systems’ that a parent corporation . . . is not liable for the acts of its subsidiaries.” United
States v. Bestfoods, 524 U.S. 51, 61 (1998) (quoting Douglas & Shanks, Insulation from Liability
Through Subsidiary Corporations, 39 Yale L.J. 193 (1929)). A parent corporation can be held
directly liable if the alleged wrong can be traced to the parent corporation or “‘the parent is
directly a participant in the wrong complained of.’” Id. at 64 (quoting Douglas & Shanks at
208). In the absence of direct liability, parent corporations may be held derivatively liable for a
subsidiary’s actions and plaintiffs may pierce the corporate veil when “the corporate form would
otherwise be misused to accomplish certain wrongful purposes, most notably fraud.” Id. at 62.
On a motion to dismiss, “the complaint is construed liberally in the plaintiffs’
favor, and [the Court] grant[s] plaintiffs the benefit of all inferences that can be derived from the
facts alleged,” but “need not accept inferences drawn by plaintiffs if such inferences are
unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994). Plaintiffs have pled no facts under either a direct or derivative
theory of liability and advanced no alternative theories under which BAC could be found liable.
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The bank agreement governing Plaintiffs’ accounts makes clear that the relevant banking
relationship was with BANA, not BAC: “In this agreement, ‘Bank of America’, ‘Bank’, ‘we’,
‘us’ and ‘our’ means Bank of American, NA.” 2015 BANA Agreement at 1; see also 2010
BANA Agreement at 1 (identical language). The Personal Signature Cards signed by Plaintiffs
indicated that by signing they “agree that this account is and shall be governed by the terms and
conditions set forth in . . . the Deposit Agreement and Disclosures.” Reply, Ex. 4, John Doe Sig.
Card [Dkt. 17-4]; Reply, Ex. 5, Jane Doe Sig. Card [Dkt. 17-5]. In light of Plaintiffs failure to
provide any facts to support a claim against BAC, the Motion to Dismiss will be granted.
B. Motion to Amend
Plaintiffs request leave to file an amended complaint to detail their claims against
BAC or BANA more fully “if that is deemed necessary by the Court as the proper named party
against whom these claims should be asserted.” Opp’n at 3. Because Plaintiffs’ claims fail even
if the Court construes Counts I and II as against BANA, an amendment to their Complaint would
be futile.
When adjudicating common law claims, the Court applies the law of the forum
state, Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (“Except in matters governed by the
Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the
state.”). In diversity cases, such as this one, federal courts apply the choice of law rules of the
jurisdiction in which they sit. See Chambers v. NASA Federal Credit Union, 222 F. Supp. 3d 1,
7 (D.D.C. 2016). Under District of Columbia law, “[t]he general rule is that parties to a contract
may specify the law they wish to govern, as part of their freedom to contract, as long as there is
some reasonable relationship with the state specified.” Norris v. Norris, 419 A.2d 982, 984
(D.C. 1980).

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The BANA Agreements from both 2010 and 2015 provide: “This Agreement,
and your and our rights and obligations under this Agreement, are governed by and interpreted
according to federal law and the law of the state where your account is located.” 2015 BANA
Agreement at 2; 2010 BANA Agreement at 2. The Deposit Agreements further stated: “We
ordinarily maintain your account at the banking center where we open your account. However,
we may transfer your account to another banking center in the same state or in a different state.”
Id.
Plaintiffs do not reveal where the BANA banking centers maintaining their
accounts were located. In the Complaint they suggest, without explanation, that the BANA
Agreement should be interpreted under either Georgia or California law, Compl. ¶ 25, but in
their Opposition rely on Georgia and Florida law, Opp’n at 11-12. Defendants infer, based on
Plaintiffs’ states of domicile, that the relevant bank accounts were maintained in Florida and
Georgia and therefore rely on those states’ laws. See Mot. to Dismiss at 9. The Court notes that
the Personal Signature Cards signed by Plaintiffs indicate that John Doe’s banking center was
located in Maryland and Jane Doe’s in Georgia, but cannot discern whether those are the states
in which the Does’ accounts were located at the time they were closed.
Despite the lack of clarity on the relevant state law, the standards for negligence
and breach of contract remains sufficiently similar across the relevant states to avoid the need for
a conflict of laws analysis and to convince the Court that a claim against BANA for negligence
would fail regardless of the applicable state law.
1. Negligence
Under Georgia, Florida, Maryland, and California state law, a negligence claim
has four elements: (1) a duty; (2) breach of that duty; (3) causation; and (4) damages. See Ileto

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v. Glock, 349 F.3d 1191, 1203 (9th Cir. 2003) (“In order to establish negligence under California
law, a plaintiff must establish four required elements: (1) duty; (2) breach; (3) causation; and (4)
damages.”); Vason v. Bd. Of Edu. Of Montgomery Cty., No. 15-2228, 2017 WL 412528, at *2
(D. Md. Jan. 31, 2017) (“To establish a prima facie case for negligence under Maryland law, a
plaintiff must prove: (1) the defendant owed a duty to protect the plaintiff from injury; (2) the
defendant breached that duty; (3) the plaintiff suffered an injury; and (4) the defendant’s breach
was the proximate cause of the injury.”); Bartsh v. Costello, 170 So. 3d 83, 86 (Fla. Dist. Ct.
App. 2015) (“A negligence claim has four elements: (1) a duty by defendant to conform to a
certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection
between the breach and injury to plaintiff; and (4) loss or damage to plaintiff.”); Goldstein,
Garber & Salama, LLC v. J.B., 797 S.E.2d 87, 89 (Ga. 2017) (citations and internal quotation
marks omitted) (“It is well established that to recover for injuries caused by another’s
negligence, a plaintiff must show four elements: a duty, a breach of that duty, causation and
damages.”).
Essential to a successful negligence claim is the existence of a legally enforceable
duty, which Plaintiffs allege is a duty to act with reasonable care that encompasses “a duty . . . to
investigate” charges made against Mr. Doe and to “determine whether they were bona fide.”
Compl. ¶¶ 15, 20. Plaintiffs root the source of this duty in Mr. Doe’s “sterling 34-year
relationship” with BAC “and his international status, i.e., Plaintiff John Doe is held in high
regard all over the world.” Compl. ¶ 20.
The BANA Agreement acknowledges a duty of ordinary care toward Plaintiffs.
2015 BANA Agreement at 2; 2010 BANA Agreement at 2 (“We owe you . . . a duty of ordinary
care.”). Georgia, Florida, Maryland, and California have all adopted the Uniform Commercial

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Code’s definition of “ordinary care,” which “in the case of a person engaged in business means
[1] observance of reasonable commercial standards, [2] prevailing in the area in which the
person is located, [3] with respect to the business in which the person is engaged.” U.C.C. § 3103(a)(9) (2002); Cal. Com. Code § 3103(a)(7) (West 2007); Fl. Stat. Ann. § 673.1031(1)(g)
(West 1992); Ga. Code Ann. § 11-3-103(a)(7) (2016); Md. Code Ann., Com. Law § 3-103(a)(7)
(West 2012).
Plaintiffs provide no facts to support their assertion that reasonable commercial
standards in any relevant state require banks to investigate totally external information that
impedes their banking relationship or to provide customers an opportunity to respond to that
information before a bank account may be closed, with prior notice, as here. Nor do Plaintiffs
point to any industry standard requiring banks to provide reasons for the closure of an account.
Contrary to Plaintiffs assertions that BANA owed them such a duty, the BANA Agreement
explicitly provided for either BANA or its customer to close a bank account “at any time without
advance notice.” 2015 BANA Agreement at 2; 2010 BANA Agreement at 2. Plaintiffs’ claim of
negligence cannot be saved by amendment adding BANA as a defendant.
2. Breach of Contract
The elements for a breach of contract claim vary slightly under California,
Florida, Georgia, and Maryland law, however, all jurisdictions require as an essential element of
the claim that the plaintiff demonstrate a valid contract that was breached. See Oasis W. Realty,
LLC v. Goldman, 250 P.3d 1115, 1121 (Cal. 2011) (“[T]he elements of a cause of action for
breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.”); Abbott
Labs., Inc. v. Gen. Elec. Capital, 765 So. 2d 737, 740 (Fla. Dist. Ct. App. 2000) (“The elements

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of a breach of contract are: (1) a valid contract; (2) a material breach; and (3) damages.”); Layer
v. Clipper Petroleum, Inc., 735 S.E.2d 65, 69 (Ga. Ct. App. 2012) (citation and internal quotation
marks omitted) (“The elements for a breach of contract claim in Georgia are the (1) breach and
the (2) resultant damages (3) to the party who has the right to complain about the contract being
broken.”); RRC Northeast, LLC v. BAA Maryland, Inc., 994 A.2d 430, 442 (Md. 2010) (“[A]
plaintiff need only allege the existence of a contractual obligation owed by the defendant to the
plaintiff, and a material breach of that obligation by the defendant.”).
While all four states recognize an implied duty of good faith and fair dealing,
under Florida, Georgia, and Maryland law, a claim for breach of an implied duty of good faith
and fair dealing is not an independent cause of action. See Ins. Concepts & Design, Inc. v.
Healthplan Servs., Inc., 785 So. 2d 1232, 1234 (Fla. Dist. Ct. App. 2001) (“[A] claim for breach
of the implied covenant of good faith and fair dealing cannot be maintained under Florida law
absent an allegation that an express term of the contract has been breached.”); Stuart Enters.
Int’l, Inc. v. Peykan, Inc., 555 S.E.2d 881, 884 (Ga. Ct. App. 2001) (“[T]he failure to act in good
faith in performing a contract does not create an independent cause of action.”); Mount Vernon
Props., LLC v. Branch Banking And Tr. Co., 907 A.2d 373, 381 (Md. Ct. Spec. App. 2006)
(“[T]here is no independent cause of action at law in Maryland for breach of implied covenant of
good faith and fair dealing.”). The duty merely obliges contracting parties “to exercise good
faith in performing [their] contractual obligations; it does not obligate . . . affirmative actions”
not required by the contract itself. Parker v. Columbia Bank, 604 A.2d 521, 531 (Md. Ct. Spec.
App. 1992); see also Hosp. Corp. of Am. v. Florida Med. Ctr., Inc, 710 So. 2d 573, 575 (Fla.
Dist. Ct. App. 1998) (“[A] duty of good faith must relate to the performance of an express term
of the contract and is not an . . . independent term . . . which may be asserted as a source of

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breach.”); Stuart Enters., 555 S.E.2d at 884 (citation and quotation marks omitted) (The implied
covenant “is a doctrine that modifies the meaning of all explicit terms in a contract, preventing a
breach of those explicit terms.”).
Under California law, a claim for breach of an implied duty of good faith and fair
dealing can exist independently of a breach of contract claim where defendant’s actions may
frustrate, if not technically breach, the express terms of a contract. See Love v. Fire Ins. Exch.,
221 Cal. App. 3d 1136, 1153 (1990). Nevertheless, even in California, as in Georgia, Florida,
and Maryland, an implied covenant cannot be “invoked to override the express terms of the
agreement between the parties.” Ins. Concepts & Design, Inc., 785 So. 2d at 1235; see also
Storek & Storek, Inc. v. Citicorp Real Estate, Inc., 100 Cal. App. 4th 44, 55 (2002) (“[A]n
implied covenant of good faith and fair dealing cannot contradict the express terms of a
contract.”); Griffin v. State Bank of Cochran, 718 S.E.2d 35, 43 (Ga. Ct. App. 2011) (citation
omitted) (“There can be no breach of an implied covenant of good faith where a party to a
contract has done what the provisions of the contract expressly give him the right to do.”);
Blondell v. Littlepage, 991 A.2d 80, 90-91 (Md. 2010) (holding that an implied duty is simply a
recognition of conditions inherent in expressed promises).
Plaintiffs allege BANA breached an implied covenant of good faith and fair
dealing, which would have necessitated: “(a) starting a dialogue with the source of the
allegations . . . ; (b) ascertaining the bona fides of such accusations before shutting down the
bank accounts; (c) calling in [Mr. Doe] to alert him to the nature of the accusations; and (d)
starting a comprehensive investigation . . . and issuing a report to [Mr. Doe].” Compl. ¶ 25.
Plaintiffs point to no contractual provision that has been breached, nor do they explain how the
performance of any contractual provision has been frustrated. Furthermore, an express provision

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of the BANA agreement allows for either party to close the account at any time and for any
reason. 2015 BANA Agreement at 2; 2010 BANA Agreement at 2. The Does’ claim for breach
of contract or breach of implied covenant of good faith would thus fail under any applicable state
law even if they were to amend the Complaint to add BANA as a defendant.
C. Request for Additional Discovery
Finally, Plaintiffs seek discovery to locate the original contract, signed 34 years
ago, which they surmise “probably has a higher duty of care standard to be applicable [to]
Plaintiffs’ negligence claims here.” Opp’n at 10. Whether an earlier, and substantially different,
contract existed is irrelevant in light of Plaintiffs’ clear acceptance of the 2010 BANA
Agreement, as evidenced by their signature cards (dated 10/13/2010 and 7/26/2011) agreeing
“that this account is and shall be governed by the terms and conditions set forth in . . . the
Deposit Agreement and Disclosures.” Reply, Ex. 4, John Doe Sig. Card; Reply, Ex. 5, Jane Doe
Sig. Card. The 2010 BANA Agreement further specifies: “We may change this Agreement at
any time. We may add new terms. We may delete or amend existing terms. . . . When we
change this Agreement, the then-current version of this Agreement supersedes all prior versions
and governs your account.” 2010 BANA Agreement at 2. Again, Plaintiffs agreed to these
explicit terms.
The Court finds that both Mr. and Ms. Doe were bound by the most current
version of the BANA Agreement at the time their accounts were closed in 2015 and further
discovery to uncover an older deposit agreement would not further their claims. The Court
further notes that, at the point of a motion to dismiss, a court’s “role is not to speculate about
which factual allegations are likely to be proved after discovery.” Harris v. D.C. Water & Sewer
Auth., 791 F.3d 65, 70 (D.C. Cir. 2015) (citing Twombly, 550 U.S. at 556). Plaintiffs must allege

14

sufficient facts for the Court to reasonably infer the misconduct alleged. Iqbal, 556 U.S. at 67879. Plaintiffs have failed to do so here.
Having found that “‘the allegation of other facts consistent with the challenged
pleading could not possibly cure the deficiencies’” of Plaintiffs’ Complaint, the Court will
dismiss Plaintiffs’ claims against BAC with prejudice. Firestone v. Firestone, 76 F.3d 1205,
1209 (D.C. Cir. 1996) (quoting Jarrell v. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985)).
IV. CONCLUSION
For the reasons articulated above, Defendants’ Motion to Dismiss, Dkt. 14, shall
be granted. Plaintiffs have failed to state a claim for negligence or breach of contract against
Defendant Bank of America Corporation and have conceded all claims against Defendant Merrill
Lynch, Pierce, Fenner & Smith, Inc. Amending the Complaint to name Bank of American, N.A.
would be futile as a matter of law and the uncontested facts. A memorializing Order
accompanies this Opinion.

Date: August 11, 2017
/s/
ROSEMARY M. COLLYER
United States District Judge

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