Parra Hernandez v. BBVA Compass Bank

Filing 25

ORDER: Defendant BBVA Compass Bank's Motion to Dismiss Count I of Plaintiff's Complaint 6 is GRANTED. Plaintiff Carlos Luis Parra Hernandez may file an Amended Complaint by August 12, 2014. Signed by Judge Virginia M. Hernandez Covington on 8/6/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CARLOS LUIS PARRA HERNANDEZ,
Plaintiff,
v.

Case No. 8:14-cv-1540-T-33AEP

BBVA COMPASS BANK,
Defendant.
_______________________________/
ORDER
This cause is before the Court pursuant to Defendant
BBVA Compass Bank’s Motion to Dismiss Count I of Plaintiff’s
Complaint (Doc. # 6), filed on July 3, 2014. Plaintiff Carlos
Luis Parra Hernandez filed a response in opposition to the
Motion on July 15, 2014. (Doc. # 14). With leave of Court,
Compass Bank filed a reply on July 24, 2014. (Doc. # 22).
For the reasons stated at the hearing held on August 5,
2014, and for the reasons that follow, the Court grants
Compass Bank’s Motion. However, Count I is dismissed without
prejudice so that Hernandez may file an Amended Complaint by
August 12, 2014, to state a cause of action, if possible.
I.

Background
Hernandez,

an

individual

residing

in

Venezuela,

initiated this action on March 18, 2014, against Defendant

Compass Bank, a bank authorized to engage in business in
Florida. (Doc. # 2 at ¶¶ 4-5). Hernandez alleges that Compass
Bank

failed

to

reimburse

him

for

two

fraudulent

checks

withdrawn from his savings account with Compass Bank. (Id. at
¶¶ 12, 19-20). Specifically, the four count Complaint alleges
claims

for:

(1)

Unauthorized

Drawer’s

Signature,

(2)

Negligence, (3) Breach of Contract, and (4) Violation of Fla.
Stat. § 674.401. (Id. at 4-7). On June 25, 2014, Compass Bank
removed this action on the basis of diversity jurisdiction.
(Doc. # 1).
According to the Complaint, Hernandez opened a checking
account with Compass Bank on October 24, 2011. (Doc. # 2 at
¶ 8). Soon thereafter, Hernandez opened a savings account
with Compass Bank. (Id. at ¶ 9). On July 23, 2013, Hernandez
received

his

monthly

statement

from

Compass

Bank

and

discovered that two checks had been “fraudulently withdrawn”
from his savings account in the amounts of $79,600 and $73,400,
respectively. (Id. at ¶ 12). Hernandez claims that he never
authorized or signed the two checks and that Compass Bank
never contacted him to authenticate, validate, or verify the
checks. (Id. at ¶¶ 13-14). Consequently, on July 23, 2013,
Hernandez requested reimbursement from Compass Bank. (Id. at
¶ 15).

2

In

response,

Compass

Bank

sent

Hernandez

a

formal

reimbursement form to fill out, which Hernandez “immediately
returned.” (Id. at ¶ 17). On August 30, 2013, Compass Bank
advised Hernandez that the bank would not reimburse him for
the withdrawn monies. (Id. at ¶ 19).
On July 3, 2014, Compass Bank filed the present Motion
to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. # 6).
On July 15, 2014, Hernandez filed a response in opposition,
(Doc. # 14), and with leave of Court, Compass Bank filed a
reply on July 24, 2014. (Doc. # 22). This Court has reviewed
the Motion, the response, and the reply, and is otherwise
fully advised in the premises.
II. Legal Standard
On a motion to dismiss, this Court accepts as true all
of the factual allegations in the complaint and construes
them in the light most favorable to the plaintiff. Jackson v.
Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further, this Court favors the plaintiff with all reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir.
1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However, the Supreme Court explains that:

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While a complaint attacked by a Rule 12(b)(6)
motion to dismiss 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. Factual allegations must be enough to
raise a right to relief above the speculative level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Further, 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).
In

accordance

with

Twombly,

Federal

Rule

of

Civil

Procedure 8(a) calls “for 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, 663 (2009) (quoting
Twombly, 550 U.S. at 570). A plausible claim for relief must
include “factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
III. Analysis
“Any

right

or

obligation

declared

by

[the

Florida

Uniform Commercial Code] is enforceable by action unless the
provision declaring it specifies a different and limited
effect.” Fla. Stat § 671.106(2). According to the Code, “an
unauthorized signature is ineffective except as the signature

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of the unauthorized signer in favor of a person who in good
faith pays the instrument or takes it for value.” Fla. Stat.
§ 673.4031(1).
Compass
appropriate

Bank
as

claims

Hernandez

that

dismissal

“alleges

no

of

Count

statute

I

that

is
was

violated, no portion of a contract, and no reference as to
the source of any of the purported duties that [Compass Bank]
allegedly failed to meet or comply with,” and further posits
that no statute, common law, or agreement between the parties
provides a claim for “Unauthorized Drawer’s Signature.” (Doc.
# 6 at 3). Therefore, Compass Bank asserts that Hernandez has
failed to state a plausible claim for relief and requests the
Court dismiss Count I of the Complaint. (Id. at 2-3).
Hernandez

counters

that

his

claim

for

Unauthorized

Drawer’s Signature is based on the Florida Uniform Commercial
Code

which

ineffective

provides
except

that

as

the

“an

unauthorized

signature

of

the

signature

is

unauthorized

signer in favor of a person who in good faith pays the
instrument or takes it for value.” (Doc. # 14 at 2-3); Fla.
Stat.

§

671.106(2);

Fla.

Stat

§

673.4031(1).

Hernandez

alleges that Compass Bank failed to exercise reasonable care
by

failing

to

adhere

to

reasonable

commercial

banking

procedures and standards. (Doc. # 14 at 2). Specifically,

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Hernandez contends that Compass Bank failed to ascertain the
genuineness of endorsements on checks presented to it for
payment prior to “giving $153,000 of Plaintiff’s money to a
stranger.” (Id.).
Therefore,

Hernandez

claims

that,

because

Florida’s

Uniform Commercial Code declares all of its provisions are
enforceable by action, under Fla. Stat. § 671.106(2), Compass
Bank’s failure to inquire into the checks presented to it for
payment

resulted

in

a

cause

of

action

for

Unauthorized

Drawer’s Signature pursuant to Fla. Stat. § 673.4031(1).
Accordingly, Hernandez submits that the Complaint contains
sufficient detail to provide Compass Bank with fair notice of
the claims alleged therein. (Id. at 2-3). However, at the
hearing held on August 5, 2014, counsel for Hernandez conceded
that

the

Complaint

contains

no

specific

mention

of,

or

reference to, Fla. Stat. §§ 671.106(2) or 673.4031(1).
In its reply, Compass Bank asserts that Hernandez never
cited Fla. Stat. §§ 671.106 or 673.4031 within his Complaint.
(Doc. # 22 at 2). Accordingly, Compass Bank maintains that
the Complaint fails to provide any notice of Hernandez’s
statutory claims in violation of Fed. R. Civ. P. 8(a)(2).
(Id.). Furthermore, Compass Bank disagrees with the legal
arguments that Hernandez makes within his response to Compass

6

Bank’s Motion to Dismiss. See (Id. at 2-4); Fla. Stat. §
671.106(2); Fla. Stat. § 673.4031(1); Edgerly, 121 So. 2d at
419. At the hearing held on August 5, 2014, counsel for
Compass

Bank

reaffirmed

the

bank’s

position

that

the

Complaint fails to provide fair notice with respect to Count
I.
Upon review, this Court finds that Compass Bank’s Motion
should be granted. Although Fed. R. Civ. P. 8(a) contemplates
a liberal pleading standard, Hernandez’s Complaint fails to
sufficiently provide Compass Bank with “fair notice” of his
claim for Unauthorized Drawer’s Signature and the grounds
upon which it rests. Twombly, 550 U.S. at 555 (stating that
Rule 8(a)’s purpose is to “give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.”);
accord Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010);
Kabbaj v. Obama, 13-14748, 2014 WL 2619677 (11th Cir. 2014).
Specifically, looking strictly at the four corners of
the Complaint, Hernandez fails to cite any authority in
support of his claim for Unauthorized Drawer’s Signature.
(Doc. # 2); see St. George v. Pinellas Cnty., 285 F.3d 1334,
1337 (11th Cir. 2002)(“[t]he scope of review must be limited
to the four corners of the complaint); Kinsey v. MLH Fin.
Servs., Inc., 509 F. App’x 852, 853 (11th Cir. 2013)(“[i]n

7

resolving a motion to dismiss under Rule 12(b)(6), the court
generally limits itself to a consideration of the pleadings
and exhibits attached thereto.“).
Although

Hernandez

refers

to

the

Florida

Uniform

Commercial Code and Fla. Stat. §§ 671.106(2) and 673.4031(1)
within his response to Compass Bank’s Motion, to explain his
position, Hernandez cannot incorporate these statutes into
his Complaint by mere reference. (Doc. # 14 at 2-3). As
articulated in the Motion as well as the reply, Hernandez has
failed to allege a statute, common law, or portion of a
contract demonstrating his entitlement to relief as to Count
I, and therefore, does not sufficiently place Compass Bank on
notice of his legal claim. (See Doc. # 6 at 3; Doc. # 22 at
2). Thus, this Court grants Compass Bank’s Motion.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant BBVA Compass Bank’s Motion to Dismiss Count I
of Plaintiff’s Complaint (Doc. # 6) is GRANTED.

(2)

Plaintiff

Carlos

Luis

Parra

Hernandez

Amended Complaint by August 12, 2014.

8

may

file

an

DONE and ORDERED in Chambers in Tampa, Florida, this 6th
day of August, 2014.

Copies: All Counsel of Record

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