Argentine v. Bank of America Corporation et al

Filing 32

ORDER ATTACHED denying 23 Motion to Dismiss for Failure to State a Claim. Defendant BAC's answer and defenses, if any, must be filed within fourteen (14) days. Signed by Judge Richard A. Lazzara on 7/31/2015. (CCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOSEPH J. ARGENTINE,
Plaintiff,
v.

CASE NO: 8:15-cv-957-T-26JSS

BANK OF AMERICA CORPORATION and
FIA CARD SERVICES, N.A.,
Defendants.
/
ORDER
Before the Court is Defendant Bank of America Corporation’s Motion to Dismiss
Amended Complaint (Dkt. 23) and Plaintiff’s Response. (Dkt. 29). After careful
consideration of the allegations of the Amended Complaint (Dkt. 17), the argument of
counsel, and the applicable law, the Court concludes the motion should be denied.
This Court has previously set forth the standard by which the allegations of a
complaint are measured to determine whether it survives a motion to dismiss filed
pursuant to Federal Rule of Civil Procedure 12(b)(6).1 See Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 173 L.Ed.2 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In its previous order, the Court ordered that
Plaintiff “replead the complaint to specify the basis of liability for each Defendant in each

1

See docket 15.

count.”2 Defendant Bank of America Corporation (BAC) contends, relying on the same
grounds in its initial motion to dismiss, that the amended complaint does not clarify the
grounds on which it is being sued.
The Court finds that the amended complaint with all the attached notices,
agreements, and screen pages from the website for “Bank of America,” withstands
dismissal. What Defendant BAC asserts is neatly delineated with respect to liability of
the various entities, which are named in the materials attached to the amended complaint,
and their specific roles in the offering of credit card programs, is not, however, so evident
as to rule out liability on the part of Defendant BAC at the pleading stage. Defendant
BAC may revisit this issue at a later stage of the proceedings in a motion for summary
judgment after the record is more fully developed.
It is therefore ORDERED AND ADJUDGED that Defendant Bank of America
Corporation’s Motion to Dismiss Amended Complaint (Dkt. 23) is DENIED. Defendant
BAC shall file its answer and defenses, if any, within fourteen (14) days of this order.
DONE AND ORDERED at Tampa, Florida, on July 31, 2015.

s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:

Counsel of Record

2

See docket 15, p. 11.
-2-