Digges v. Wells Fargo Bank, N.A.

Filing 43

ORDER granting 36 Motion to Dismiss. Closing Case. Motions Terminated: 36 Defendant's MOTION TO DISMISS 33 Amended Complaint/Amended Notice of Removal FOR FAILURE TO STATE A CLAIM filed by Wells Fargo Bank, N.A.. Signed by Judge Robin L. Rosenberg on 9/24/2024. See attached document for full details. (drz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-CV-80283-ROSENBERG
CAROL E. DIGGES,
Plaintiff,
v.
WELLS FARGO BANK, N.A.,
Defendant.
/
ORDER GRANTING THE DEFENDANT’S MOTION TO DISMISS
THIS CAUSE is before the Court the Defendant’s Motion to Dismiss at docket entry 36.
The Motion has been fully briefed. For the reason set forth below, the Motion is granted.
This is a case about a wire transfer. DE 33 at 2. The Plaintiff sold real property but, before
the transaction could be finalized, the computer system of the Plaintiff’s title agent was hacked.
Id. As a result, the money that should have been wired to the Plaintiff was instead wired to the
unknown hacker. Id. The Plaintiff has filed this suit against the bank that the hacker used to receive
the wire transfer, Wells Fargo. Id. The premise underlying the Plaintiff’s suit, which is brought
pursuant to Florida law, is that Defendant Wells Fargo should have known that the wire transfer
was not for the Plaintiff’s benefit and therefore should have refused to accept the wire transfer,
because the name on the wire transfer (the Plaintiff’s name) did not match the account number on
the wire transfer (the hacker’s account number). Id.
The Defendant has moved to dismiss the Plaintiff’s Third Amended Complaint on five
grounds: (1) that the Defendant had no obligation under Florida law to determine if the wire
transferee account name and account number did not match, (2) that the Defendant was permitted
under Florida law to rely solely on the account number when accepting the wire transfer, (3) that
the Third Amended Complaint does not allege that the name and account number corresponded to

two different people, (4) that the Third Amended Complaint does not allege facts that establish
that the Defendant had actual knowledge of a name/account number mismatch, and (5) that the
Florida statute that the Plaintiff’s claim is premised upon does not apply when, as here, the wire
transfer was processed by automated means. In response, the Plaintiff does not respond to four of
the Defendant’s five grounds for dismissal; the Plaintiff only responds to the Defendant’s fourth
argument on whether the Plaintiff has pled actual knowledge.
Local Rule 7.1(c)(1) requires a party opposing a motion to file an opposing memorandum
of law and also provides that “[f]ailure to do so may be deemed sufficient cause for granting the
motion by default.” Moreover, “[f]ailure to respond to arguments in a motion to dismiss is a
sufficient basis to dismiss such claims by default under” the Local Rule. A1 Procurement, LLC v.
Hendry Corp., No. 11-23582-CIV, 2012 WL 6214546, at *3 (S.D. Fla. Dec. 13, 2012). A response
to a motion that does not address all the arguments in the motion fails to comply with Local Rule
7.1. Id. For these reasons, the Plaintiff’s failure to respond to four of the Defendant’s five grounds
for dismissal (which are persuasively supported with citations to on-point authority) is alone a
sufficient basis to grant the Motion.
As for the one ground that the Plaintiff does respond to—whether the Plaintiff has alleged
that the Defendant had actual knowledge that the account name and number did not match—the
Court agrees with the Defendant that the Plaintiff has failed to plausibly allege the same. See Fla.
Stat. § 670.207; Peter E. Shapiro, P.A. v. Wells Fargo Bank, N.A., 352 F. Supp. 3d 1232-33 (S.D.
Fla. 2018) (“[I]information stored within a bank’s computer system does not create actual
knowledge or a duty to investigate.”). Simply stated, the Plaintiff cannot allege actual knowledge
based upon information in the Defendant’s computer systems—the Plaintiff can only allege actual
knowledge based upon specific knowledge that a person employed by the bank possessed. Id. This
the Plaintiff has not done.

The Plaintiff has now had three opportunities to plead an actionable claim, and this is the
third time in succession that the Court has dismissed the Plaintiff’s pleading. As the Plaintiff has
been afforded adequate opportunity to amend, and given that this case is now greater than six
months old, the Court’s dismissal is now without leave to amend.
For the foregoing reasons, it is ORDERED AND ADJUDGED that the Defendant’s
Motion to Dismiss [DE 36] is GRANTED, the Plaintiff’s Third Amended Complaint is
DISMISSED WITHOUT LEAVE TO AMEND, and the Clerk of the Court shall CLOSE THIS
CASE.
DONE AND ORDERED in Chambers, West Palm Beach, Florida, this 24th day of
September, 2024.
Copies furnished to:
Counsel of record

_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE