Snelling v. HSBC Card Services, Inc.,et al.

Filing 53

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that defendant HSBC Card Services, Inc.'s motion to dismiss [#[ 44]] is granted in part. Counts I and IV are dismissed with prejudice. The motion is denied as to all other counts. IT IS FURTHER ORDERED that all claims against HSBC Holdings, plc are dismissed without prejudice. Signed by District Judge Catherine D. Perry on 06/09/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LONNIE SNELLING,

)
)
Plaintiff,
)
)
vs.
)
)
HSBC CARD SERVICES, INC., et al., )
)
Defendants.
)

Case No. 4:14 CV 431 CDP

MEMORANDUM AND ORDER
This case comes before me on a second motion to dismiss filed by HSBC
Card Services, Inc. After ruling on the first motion, I granted plaintiff Lonnie
Snelling the opportunity to amend his fraud and Missouri Merchandising Practices
Act (MMPA) claims. In addition to amending those claims, Snelling added a
count for unjust enrichment, which will be dismissed under Rule 41(b) as
requested by HSBC. Snelling’s fraud claims will also be dismissed for failure to
state a claim. Snelling’s breach of contract and MMPA counts do state plausible
claims and are timely, however, so HSBC’s motion to dismiss will be denied as to
those counts.
I. Background
Pro se plaintiff Lonnie Snelling sued HSBC Card Services, Inc. (HSBC), its
parent company HSBC Holdings, plc, and the Eastman Kodak Company (Kodak)

in state court, asserting a number of claims related to his purchase of a Kodak
inkjet printer with a Visa credit card serviced by HSBC. HSBC removed, and all
claims against Kodak were stayed pending resolution of bankruptcy proceedings.
The First Amended Petition,1 filed January 17, 2014, alleged that Visa
television advertisements aired “in the 2007s” stated that buyers making purchases
with Visa credit cards would be protected from fraud and given an extended
warranty. Between 1990 and 2007, Snelling disputed several charges with sellers;
these were resolved with the assistance of the credit card company. HSBC
acquired Snelling’s credit card contract sometime in 2007. Under that contractual
relationship, Snelling would use the Visa card to purchase goods from vendors and
make payments to HSBC at the end of a billing period.
HSBC began enforcing a policy under which purchases made more than 100
miles from the cardholder’s home would not receive fraud protections or assistance
with vendor disputes. However, Snelling alleges the 100-mile limit was neither
disclosed at the time HSBC notified Snelling that it was taking over his account
nor during the airing of television commercials between 2007 and 2008. HSBC
also failed to disclose the new policy when it assisted Snelling with several charge
disputes between 2007 and 2008. In December 2008, Snelling purchased a
defective printer from Kodak. After exchanging several letters, HSBC declined to
1

Snelling amended his petition once in state court before it was removed.

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assist Snelling with his dispute. Snelling alleged this breached the duties HSBC
owed to Snelling as well as its contractual obligations.
The precise claims asserted in the First Amended Petition were difficult to
ascertain. For example, Count I presented claims for “fraudulent inducement to
contract/concealment of a material fact/breach/credit card user law/punitive
damages.” Allegations supporting those claims were strewn throughout the
petition.
HSBC moved to dismiss the fraud, Missouri Merchandising Practices Act
(MMPA), negligence, and negligent infliction of emotional distress claims
presented in the First Amended Petition. This court dismissed with prejudice
Snelling’s claims for negligence and negligent infliction of emotional distress,
because he failed to allege a duty independent of his credit card contract. See
Order, Feb. 3, 2015, ECF No. 38. It also dismissed without prejudice the fraud and
MMPA claims for failure to specify when and who aired the advertisements or any
connection with HSBC. Snelling was afforded the opportunity to amend his
pleadings “for the limited purpose of attempting to bring his fraud and Missouri
Merchandising Practices Act claims into conformity with the heightened pleading
requirements of Rule 9(b), if possible.” See Order, Feb. 3, 2015, ECF No. 38 at p.
27.

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On February 24, 2015, Snelling filed his Second Amended Complaint. ECF
No. 43. This pleading amended his fraud and MMPA claims. Snelling also added
a claim for unjust enrichment and set forth his breach of contract claim in a
separate count.
Snelling’s Second Amended Complaint sets forth a broader picture of what
he alleged transpired. He again alleges that from the 1990s through 2006,
television commercials advertised that purchases made with a Visa card would be
protected from fraud and granted a one-year extended warranty. Snelling obtained
a Visa card through “Direct Merchants Bank,” which he used from 2003 through
2006. During that time, Direct Merchants assisted Snelling with several vendor
charge disputes.
In 2007, HSBC acquired Snelling’s Visa contract. The notice that future
payments on Snelling’s Visa card should be directed to HSBC failed to mention
that HSBC would begin enforcing a mileage limit on disputed charges. Purchases
made more than 100 miles from a cardholder’s residence would no longer receive
fraud or charge dispute protections. Visa television commercials aired on behalf of
HSBC on KMOV Channel 4 in St. Louis County, Missouri, from 2006 through
December 2008. These commercials, which featured voice-over actors Keeley
Hawnes, Morgan Freeman, and Samuel L. Jackson, also did not disclose the 100mile policy. In October 2008, Snelling had a dispute with a vendor over a

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defective cooker purchased with his Visa card; HSBC intervened without
mentioning the 100-mile radius limitation. Neither was the 100-mile limitation
ever mentioned during Snelling’s interactions with Direct Merchants from 2003
through 2006.
On December 8, 2008, Snelling saw a television advertisement for a Kodak
printer and placed an order by telephone. The printer was subject to a thirty-day
return policy. After discovering that the printer would not work with his computer,
Snelling requested a return label on December 23, 2008. He also telephoned
HSBC to report that he was disputing the charge. Between December 26, 2008
and January 23, 2009, Snelling and HSBC exchanged letters regarding the Kodak
printer dispute. The January 23 letter from HSBC requested additional information
related to Snelling’s return of the printer to Kodak. The letter stated that HSBC
would consider the matter resolved unless it received a written response within ten
days. On February 23, 2009, Snelling wrote a letter to HSBC memorializing
conversations he had with “Gii Gii” and “Christina” from the HSBC dispute
department. This letter references a conversation between Snelling and Christina,
who, on February 3, 2009, informed Snelling that the charge “would be taken care
of.”
Snelling appears to assert four classes of claims against HSBC. Count I
alleges fraudulent inducement and fraudulent concealment claims based on the

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television advertisements, 100-mile policy, and Christina’s statement. Count II
asserts a breach of contract claim. Count III presents a claim under the Missouri
Merchandising Practices Act. Count IV alleges for the first time a claim for unjust
enrichment.
HSBC moves to dismiss the entire complaint under Rule 41(b), arguing that
Snelling disregarded this court’s Order of February 3 by submitting Counts II and
IV. It also moves to dismiss each count against it for failure to state a claim and
for failure to file within the statutory limitations period.
II. Discussion
A. Request for Dismissal under Rule 41(b)
HSBC first moves for dismissal of this action under Rule 41(b) of the
Federal Rules of Civil Procedure. It contends Snelling added claims for unjust
enrichment and breach of contract in direct defiance of this court’s Order of
February 3, 2015. See ECF No. 38. Snelling responds that the breach of contract
claim was set forth in Count I of his First Amended Petition and so is not new. He
also argues that his earlier pleadings should be construed to have presented an
unjust enrichment claim.
Rule 41(b) allows a defendant to seek dismissal of all or part of the claims
against it in the event that a plaintiff fails to comply with an order of court. Fed. R.
Civ. P. 41(b). The Rule promotes the expeditious handling of cases and protects

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opposing parties from prejudice arising from vexatious and dilatory conduct.
Vasquez v. Hill, No. 4:11CV01561AGF, 2012 WL 4936085, at *2 (E.D. Mo. Oct.
17, 2012) (citing Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260 (8th
Cir. 1997)). Dismissal with prejudice under Rule 41(b) “is an ‘extreme sanction’
that should only be available for ‘willful disobedience of a court order or where a
litigant exhibits a pattern of intentional delay.’” Siems v. City of Minneapolis, 560
F.3d 824, 826 (8th Cir. 2009) (quoting Hunt v. City of Minneapolis, 203 F.3d 524,
527 (8th Cir. 2000)). A defendant seeking dismissal under Rule 41(b) need not
actually show bad faith, but must show that the plaintiff acted voluntarily and
purposefully. See Hunt, 203 F.3d at 527.
Several considerations must be addressed when gauging the propriety of
dismissal under Rule 41(b). First, the court weighs the need to advance its docket
against the irrevocable extinguishment of a litigant’s claim. See Doe v. Cassel,
403 F.3d 986, 990 (8th Cir. 2005). It then considers the proportionality of the
sanction in light of the litigant’s transgressions. Smith v. Gold Dust Casino, 526
F.3d 402, 405 (8th Cir. 2008) (citing Rodgers v. Curators of Univ. of Mo., 135 F.3d
1216, 1219 (8th Cir. 1998). Finally, it gauges whether a less severe sanction could
remedy the prejudice to the opposing party. See id. at 406.
This court’s Order of February 3 afforded Snelling the opportunity to amend
his First Amended Petition a second time “for the limited purpose of attempting to

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bring his fraud and Missouri Merchandising Practices Act claims into conformity
with the heightened pleading requirements of Rule 9(b), if possible.”2 That Order
did not grant Snelling leave to assert additional claims. Snelling’s addition of an
unjust enrichment claim constitutes the voluntary and purposeful defiance of this
court’s Order. Given Snelling’s pro se status, I find that dismissal of that claim,
rather than the action as a whole, is an appropriate remedy.3
HSBC contends that Snelling also disobeyed that Order by adding a separate
count for breach of contract. When liberally read, however, Snelling’s First
Amended Complaint included a breach of contract claim against HSBC.4
Although Snelling technically violated this court’s Order by setting forth his
breach of contract claim in a separate count, I do not find that the interests of
justice require dismissal of that claim.
B. Request for Dismissal Under Rule 12(b)(6)
The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure is to test the legal sufficiency of the complaint. The factual
allegations of a complaint are assumed true and construed in favor of the plaintiff,
2

See Order, Feb. 3, 2015, ECF No. 38 at p. 27.

3

Although Snelling is pro se, he is not inexperienced. Court records show that he has filed more
than a dozen cases in this court.
4

Indeed, this court dismissed Snelling’s negligence claims because they were based on HSBC’s
failure to honor their contractual obligations. See Order, Feb. 3, 2015, ECF No. 38 at 17–18.

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“even if it strikes a savvy judge that actual proof of those facts is improbable.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319,
327 (1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a judge’s
disbelief of a complaint’s factual allegations.”); Scheuer v. Rhodes, 416 U.S. 232,
236 (1974) (a well-pleaded complaint may proceed even if it appears “that a
recovery is very remote and unlikely”). The issue is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to present evidence in
support of his claim. Id. A viable complaint must include “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. See also
id. at 563 (stating the “no set of facts” language in Conley v. Gibson, 355 U.S. 41,
45–46 (1957), “has earned its retirement”). “Factual allegations must be enough to
raise a right to relief above the speculative level.” Id. at 555.
1. Fraud
HSBC contends that Snelling’s amended pleadings fail to state a claim for
fraud. Rule 9(b) sets forth a heightened pleading requirement for cases alleging
fraud or mistake: in such cases, “[a] party must state with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “Under Rule
9(b), a plaintiff must plead such matters as the time, place and contents of false
representations, as well as the identity of the person making the misrepresentation

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and what was obtained or given up thereby. In other words, the party must
typically identify the ‘who, what, where, when, and how’ of the alleged fraud.”
BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007) (internal
quotation marks and quoted cases omitted).
This higher degree of notice “is intended to enable the defendant to respond
specifically and quickly to the potentially damaging allegations.” United States ex
rel. Joshi v. St. Luke’s Hosp. Inc., 441 F.3d 552, 556 (8th Cir. 2006) (citations
omitted). “[C]onclusory allegations that a defendant’s conduct was fraudulent and
deceptive are not sufficient to satisfy the rule.” Schaller Tel. Co. v. Golden Sky
Sys., Inc., 298 F.3d 736, 746 (8th Cir. 2002) (quoting Commercial Prop. v. Quality
Inns Int’l, Inc., 61 F.3d 639, 644 (8th Cir. 1995)).
Snelling attempts to set forth claims for “fraudulent inducement to continue
contract” and fraudulent concealment of a material fact. There are five elements to
a submissible case for fraud:
(1) a false material representation; (2) the speaker’s knowledge of its
falsity or his ignorance of its truth; (3) the speaker’s intent that it
should be acted upon by the hearer in the manner reasonably
contemplated; (4) the hearer’s ignorance of the falsity of the
statement; (5) the hearer’s reliance on its truth, and the right to rely
thereon; and (6) proximate injury.
Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 411 (Mo. Ct. App. 2000). “The
truth or falsity of the representation is determined as of the time it was made and as

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of the time it was intended to be relied and acted upon.” Velder v. Cornerstone
Nat. Ins. Co., 243 S.W.3d 512, 517 (Mo. Ct. App. 2008).
As a source of the misrepresentations, Snelling points to the Visa television
commercials that advertised Visa users would be protected from fraud and granted
an extended warranty. These commercials aired “in the 1990s through 2006.” 2d
Am. Compl. ¶ 8. Snelling does not contend that the advertisements were false at
the time they were aired. Indeed, Snelling’s own pleadings show that until HSBC
took over his Visa contract in 2007, his prior servicer assisted in disputes without
raising any geographical limitation. See 2d Am. Compl. ¶¶ 10.
Nor can HSBC’s assistance with resolving Snelling’s dispute over the sale of
a cooker be construed as a representation that it would help with future disputes. A
course of dealing or performance may be considered a representation and so satisfy
the first element of a fraud claim. Cf. Wion v. Carl I. Brown & Co., 808 S.W.2d
950, 954–55 (Mo. Ct. App. 1991) (explaining that when actions create a false
impression, they can amount to a misrepresentation). However, the performance
of a single act by itself does not constitute a representation that will support a claim
for fraud. See Consol. Grain & Barge, Co. v. Hobbs, 397 S.W.3d 467, 477 (Mo.
Ct. App. 2013) (reversing judgment by trial court on grounds that the completion
of one contract by son of deceased contractor did not constitute representation that

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future contracts would also be performed). HSBC’s intervention in the cooker
dispute cannot, by itself, support a fraud claim.
Snelling also contends that HSBC defrauded him by concealing its decision
to invoke a 100-mile limitation on its fraud protections. Fraud by omission, or
fraudulent nondisclosure, is not recognized as a separate tort in Missouri. Harris v.
Mid-West Egg Donation, LLC, 365 S.W.3d 274, 276 (Mo. Ct. App. 2012).
“Instead, in such cases, a party’s silence in the face of a legal duty to speak
replaces the first element: the existence of a misrepresentation.” Id. (quoting Hess
v. Chase, 220 S.W.3d 758, 765 (Mo. banc 2007)). The existence of a duty to
disclose is essential to a fraudulent nondisclosure claim. See id. at 277.
A duty to speak arises where one party has superior knowledge or
information that is not reasonably available to the other. Hess, 220 S.W.3d at 765.
Snelling alleges that the 100-mile limitation was set out in the “Special rules for
credit card purchases” that were included on the back of the HSBC Visa billing
statement. 2d. Am. Compl. ¶¶ 38, 40. Thus, the first source of a duty to speak
fails as a matter of law.
Missouri courts have considered at least five additional circumstances
involving business transactions, in which a duty to disclose may arise:
One party to a business transaction is under a duty to exercise
reasonable care to disclose to the other before the transaction is
consummated,

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(a) matters known to him that the other is entitled to know
because of a fiduciary or other similar relation of trust and
confidence between them; and
(b) matters known to him that he knows to be necessary to
prevent his partial or ambiguous statement of the facts from
being misleading; and
(c) subsequently acquired information that he knows will make
untrue or misleading a previous representation that when made
was true or believed to be so; and
(d) the falsity of a representation not made with the expectation
that it would be acted upon, if he subsequently learns that the
other is about to act in reliance upon it in a transaction with
him; and
(e) facts basic to the transaction, if he knows that the other is
about to enter into it under a mistake as to them, and that the
other, because of the relationship between them, the customs of
the trade or other objective circumstances, would reasonably
expect a disclosure of those facts.
Kesselring v. St. Louis Grp., Inc., 74 S.W.3d 809, 814 (Mo. Ct. App. 2002)
(quoting § 551(1) Restatement (Second) Torts)). Snelling does not allege that he
and HSBC shared a fiduciary or other relationship of trust, and so option (a) is
unavailing. Snelling also fails to specify facts supporting any other form of duty.
Each of the remaining sources of duty requires the defendant have knowledge of
circumstances requiring him to speak. Snelling alleges that HSBC knew his printer
purchase exceeded the 100-mile limit, and that it failed to alert him that the
purchase would not be protected from fraud. But the Second Amended Complaint
does not contain any allegation that, for example, HSBC knew that Snelling was
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unaware of the 100-mile policy. Indeed, while Snelling alleges several instances
when HSBC failed to disclose the new mileage limit, Snelling never actually
alleges that he was unaware of the new policy, let alone that HSBC knew of his
ignorance. As alleged, Count I cannot support a claim for fraudulent
nondisclosure.
Snelling recites one other potential source of fraud: the conversation
Snelling had with “Christina,” the HSBC representative who allegedly told him
“everything would be taken care of.” Snelling alleges that Christina’s statement
was false, that HSBC knew of its falsity, and it was said with the intent that
Snelling rely on the statement. Snelling further alleges that he did act in reliance
on the statement, to the extent that he continued to participate in the Kodak printer
charge dispute. Snelling fails, however, to connect this misrepresentation to any
damages. The conversation with Christina occurred on February 3, 2009, almost
two months after he used his Visa card to purchase the Kodak printer, and so it
cannot have induced him to buy the printer or to forego returning it under the
manufacturer’s 30-day policy. Snelling does not allege any facts showing how
continued participation in the dispute harmed him. Instead, Snelling provides only
the conclusory statement that “[a]s a direct and proximate result of the
representations . . . [he has] suffered monetary losses in excess of $300.” 2d Am.
Compl. ¶ 25. This statement lacks the particularity required by Rule 9(b). See

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Sherwin-Williams Co. v. Novak’s Collision Ctr., Inc., No. 4:12CV02148 ERW,
2013 WL 5500107, at *5 (E.D. Mo. Oct. 3, 2013). Snelling’s fraud claim will be
dismissed with prejudice.
2. Missouri Merchandising Practices Act
HSBC next argues Snelling fails to state a claim for violation of the Missouri
Merchandising Practices Act (MMPA). A number of United States district courts
in Missouri have applied the heightened standard of Rule 9(b) of the Federal Rules
of Civil Procedure when reviewing claims under the MMPA. See, e.g., Stephens v.
Arctic Cat Inc., No. 4:09CV02131 AGF, 2011 WL 890686, at *7 (E.D. Mo. Mar.
14, 2011) (collecting cases).
The MMPA was created to supplement common-law fraud. Clement v. St.
Charles Nissan, Inc., 103 S.W.3d 898, 899 (Mo. Ct. App. 2003). It “attempts to
preserve fundamental honesty” and fair dealings, id., by prohibiting the “act, use or
employment by any person of any deception, fraud, false pretense, false promise,
misrepresentation, unfair practice or the concealment, suppression, or omission of
any material fact in in connection with the sale or advertisement of any
merchandise in trade or commerce. . . .” Id. (quoting R.S. Mo. § 407.020.1). To
recover, a plaintiff must allege that they made a purchase for personal, family, or
household purposes and suffered a loss caused by the defendant’s deceptive
conduct. See Conway v. CitiMortgage, Inc., 438 S.W.3d 410, 415 n.3 (Mo. banc

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2014). The deceptive practices prohibited by the MMPA were left undefined.
Clement, 103 S.W.3d at 900. Section 407.020 was written broadly in order to
“prevent evasion by overly meticulous definitions.” Id. at 900. Accordingly, the
determination of whether fair dealing has been violated turns on the unique facts
and circumstances of each case. State ex rel. Webster v. Areaco Inv. Co., 756
S.W.2d 633, 635 (Mo. Ct. App. 1988).
Snelling contends that HSBC deceptively allowed television advertisements
aired on KMOV television channel 4 in St. County in 2008 to promise fraud
protection without alerting the public that those protections were subject to a 100mile radius restriction. Snelling also contends that HSBC violated the MMPA by
failing to disclose the new distance limitation when it notified him that it was the
new servicer for his Visa card and by later placing that restriction on the back of its
billing statements. Finally, Snelling asserts that the statement by Christina that his
dispute “would be taken care of” was deceptive.
HSBC argues that Snelling’s MMPA claim fails as a matter of law, because
it was Visa and not HSBC that advertised the credit cards to the public. However,
Snelling alleged that the Visa advertisements were made on behalf of all issuers of
Visa credit cards, including HSBC. 2d Am. Compl. ¶ 38. This is a sufficient link
to survive this motion to dismiss.

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HSBC next argues that Snelling’s advertising allegations lack the specificity
required by Rule 9(b) because he only narrows the date to 2008. The overarching
principles of notice pleading dictate that a plaintiff does not need to plead fraud
“with complete insight before discovery is complete.” Gunderson v. ADM Investor
Servs., Inc., 230 F.3d 1363, at *3 (8th Cir. 2000) (unpublished). Indeed, even the
heightened pleading standards of Rule 9(b) do not require a plaintiff bereft of
discovery to plead facts outside of his reasonable knowledge. See Abels v.
Farmers Commodities Corp., 259 F.3d 910, 921 (8th Cir. 2001). Snelling provides
the year and the television channel on which the advertisements aired. He also
provides the name of the actors who participated in the advertisements. This is
sufficiently particular for pleading purposes at the dismissal stage.
HSBC next argues that Snelling cannot show that the statements regarding
the 100-mile limitation caused Snelling’s loss, because the exhibits show that the
dispute resolution ended because of his own inaction and not because of distance.
HSBC correctly notes that the court need not accept as true a plaintiff’s allegations
where they are contradicted by the complaint’s exhibits. Cf. McCarty v. Dana
Holding Corp., No. 4:08-CV-690 (CEJ), 2008 WL 4865038, at *3 (E.D. Mo. Nov.
7, 2008) (citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.
2001)). However, Snelling’s exhibits do not entirely contradict his allegations.
For example, the exhibits indicate that HSBC had been working with Snelling over

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the phone to resolve his dispute after one deadline for written communications had
passed. See 2d Am. Compl. Exh. 13. The exhibits do not conclusively show the
reason for the termination of the dispute resolution proceedings, and so dismissal
on this record is not appropriate.
HSBC contends Snelling cannot show that he suffered any monetary loss
from the Visa advertisements. However, after construing Snelling’s complaint in
the light most favorable to him, he alleges that HSBC billed him for a
nonfunctioning printer in contravention of its own advertised anti-fraud policies.
As pleaded, Snelling has alleged monetary loss. Contrast Roberts v. BJC Health
Sys., 391 S.W.3d 433, 438 (Mo. banc 2013) (holding that plaintiffs who were never
billed for overcharges had not suffered monetary loss).
HSBC next argues that Christina’s statement cannot support a MMPA claim
because the statements came after he purchased merchandise and so lack the
“connection” required by the MMPA. As discussed in the Order of February 3,
Missouri courts construe “in connection with” broadly. The deceptive practice
“may occur at any time before, during, or after the sale and by any person.”
Conway, 438 S.W.3d at 414 (applying the MMPA to a loan servicer who entered
relationship after buyer entered transaction). As pleaded, Christina’s statement
that Snelling’s dispute “would be taken care of” clearly has a connection with the
printer purchase. Finally, unlike Snelling’s fraud claims, discussed above, his

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MMPA claims do not wholly rely on the statements by Christina. Thus, his
MMPA claims do not suffer from the same causation issues that contributed to
dismissal of the fraud claims.
As an alternative to dismissal on the merits, HSBC argues that the MMPA
claim is untimely. This court has already rejected HSBC’s argument that
Missouri’s statute of limitations bars Snelling’s fraud and MMPA claims. See
Order, Feb. 3, 2015, ECF No. 38. In brief: the timing of Snelling’s first amended
petition was held to relate back to his initial state-court filing, which occurred on
December 3, 2012.5 When evaluating the statute of limitations, Missouri starts the
clock when the aggrieved party first realizes it will suffer damages. See Polytech,
Inc. v. Sedgwick James of Mo., Inc., 937 S.W.2d 309, 311–12 (Mo. Ct. App. 1996).
Because Snelling alleged that he was harmed when HSBC refused to intervene
with Kodak in December 2008 or January 2009, he was within the five-year
statutes of limitations.6 See Order, Feb. 3, 2015, ECF No. 38 at p. 16–17.

5

Snelling voluntarily dismissed that action in March 2013 and refiled.

6

Section 516.120 of the Revised Statues of Missouri provides a two-component limitations
period for fraud, which requires that an action for fraud “is to be brought within fifteen years in
any event,” but “if the fraud be discovered or is discoverable prior to the lapse of ten years, then
within five years after its discovery.” Graf v. Michaels, 900 S.W.2d 659, 661 (Mo. Ct. App.
1995) (quoting Anderson v. Dyer, 456 S.W.2d 808, 812 (Mo. Ct. App. 1970) (alteration omitted).
Snelling’s MMPA claim is also subject to a five-year limitations period. See Huffman v. Credit
Union of Tex., 758 F.3d 963, 969 (8th Cir. 2014) (citing R.S. Mo. § 516.120(2)).

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HSBC again raises the statute of limitations, this time arguing that Snelling’s
Second Amended Complaint raises new factual allegations that do not receive the
benefit of the relation-back doctrine. These new facts include the February 3, 2009
assurance by Christina that “the charge would be taken care of” and HSBC’s
decision to cease assisting Snelling on March 2, 2009. 2d Am. Compl. ¶¶ 20–25,
43. HSBC argues that since more than five years passed between those events and
the filing of the Second Amended Complaint, Snelling’s MMPA claim must be
dismissed.
Under Rule 15(c), an amendment relates back to the original pleading only if
the claim asserted in the amended pleading “arose out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in the original pleading.” Fed.
R. Civ. P. 15(c)(2). “The rationale of Rule 15(c) is that a party who has been
notified of litigation concerning a particular occurrence has been given all the
notice that statutes of limitations were intended to provide.” Mandacina v. United
States, 328 F.3d 995, 1000 (8th Cir. 2003).
This case can be distinguished from Popp Telecom, Inc., which HSBC
believes governs. In that case, the Eighth Circuit found that the relation back
doctrine did not save the plaintiffs’ newly alleged RICO claim. Popp Telecom,
Inc. v. Am. Sharecom, Inc., 361 F.3d 482, 489–90 (8th Cir. 2004). In dicta, the

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court noted that not only had the plaintiffs added an entirely new claim, but they
also added over fifteen pages of new facts. Id. at 490 n.8.
Although the specific reference to Christina’s statement is new, Snelling’s
substantive claims remain the same. He alleges that HSBC engaged in deceptive
conduct by instituting the 100-mile policy without notifying the public in its
advertisements and by only disclosing the policy on the back of its billing
statements. Moreover, to the extent that Christina’s statement is found in
Snelling’s letter to HSBC, it was referenced in the earlier pleadings. See 1st Am.
Compl. ¶ 22, ECF No. 6 (“After several letters between the parties, the HSBC
defendants notified plaintiff that it had declined to assist plaintiff with his
dispute.”). Because Christina’s statement merely expands upon previously pleaded
material, it still relates back. See Brown v. Kerkhoff, No. 4:05 CV 00274 JEG,
2005 WL 2671529, at *14 (S.D. Iowa Oct. 19, 2005) (“Claims amplifying or
clarifying previously-pled material will still relate back.”) (citing Bensel v. Allied
Pilots Ass’n, 387 F.3d 298, 310 (3d Cir. 2004); Sivulich-Boddy v. Clearfield City,
365 F. Supp. 2d 1174, 1182 (D. Utah 2005); Kidwell v. Bd. of Cnty. Commr’s of
Shawnee Cnty., 40 F. Supp. 2d 1201, 1217 (D. Kan. 1998)).
3. Breach of Contract
Snelling alleges that he and HSBC were parties to a Visa credit card
contract. Under the contract, Snelling would make purchases with his Visa card

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and submit payments each billing period. 2d Am. Compl. ¶ 29. HSBC, in turn,
owed the contractual duty to protect Snelling from fraud and to intervene on his
behalf to resolve disputes related to fraudulent charges. Id. at ¶¶ 30. HSBC
breached that duty by failing to intervene and reversing the charges attributable to
the defective printer. Id. at ¶ 39. Snelling was harmed when HSBC made him pay
the purchase cost of the printer and associated finance charges. See id. at ¶¶ 32,
34; see also ¶ 51 (noting finance charges).
HSBC argues that Snelling’s complaint is insufficient because it alleges
HSBC breached an unspecified obligation without identifying the obligation. “A
breach of contract action includes the following essential elements: (1) the
existence and terms of a contract; (2) that plaintiff performed or tendered
performance pursuant to the contract; (3) breach of the contract by the defendant;
and (4) damages suffered by the plaintiff.” Keveney v. Missouri Military Academy,
304 S.W.3d 98, 104 (Mo. banc 2010). “A party ‘fails to state a claim for breach of
contract [if] it does not set out [the claimant’s] rights or [the defendant’s]
obligations under the contract.’” Reitz v. Nationstar Mortg., LLC, 954 F. Supp. 2d
870, 884 (E.D. Mo. 2013) (quoting Trotter’s Corp. v. Ringleader Restaurants, Inc.,
929 S.W.2d 935, 941 (Mo. Ct. App. 1996)). “Vague references to unspecified
‘agreements’ are insufficient to state a claim for breach of contract.” Id. (citations
omitted).

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Construed in the light most favorable to Snelling, he has sufficiently stated a
claim for breach of contract. Snelling has alleged that a contract exists between the
parties and that he tendered performance by making purchases and payments.
Snelling has pleaded the obligations that HSBC is alleged to have breached: the
commitment to protect a cardholder from fraud by reversing charges and the duty
to intervene on the cardholder’s behalf in disputes with merchants. Although he
has not set forth the explicit terms of the contract or attached the credit card
agreement to his complaint, those failures are not dispositive of the contract claim
at this stage in the proceedings. See Nelson v. Wallen, No. 4:13CV1715 CDP,
2014 WL 2739456, at *1 (E.D. Mo. June 17, 2014) (holding a plaintiff need only
plead the legal effect of the contract) (citing 5 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1235 (3d ed.)). Finally, by alleging that
he was billed for the printer and associated finance charges, Snelling links his
damages to HSBC’s failure to perform. Snelling has stated a breach of contract
claim.
HSBC argues that the breach of contract claim is time barred because
Snelling was aware of any breach by March 2, 2009, but he did not assert the claim
until his Second Amended Complaint, which was filed in March 2014. Contract
claims must be brought within five years in Missouri. R.S. Mo. § 516.120(1).

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As discussed above when addressing the application of Rule 41(b),
Snelling’s First Amended Petition alleged a breach of contract claim. Even
assuming that no such claim then appeared, however, Snelling’s breach of contract
claim would also survive for reasons given when discussing the operation of the
statute of limitations against his MMPA claim. The relation back doctrine is
governed by the pleaded facts and not by the theory of recovery. Maegdlin v. Int’l
Ass’n of Machinists & Aerosp. Workers, Dist. 949, 309 F.3d 1051, 1053 (8th Cir.
2002). The First Amended Petition gave adequate notice of the transaction giving
rise to Snelling’s breach of contract claim, and so that cause of action is deemed to
have been filed at that time. As that pleading was filed January 17, 2014, it is well
within the five-year statute of limitations for breach of contract claims.
C. Failure to Serve HSBC Holdings, plc
The time has passed for service of HSBC Holdings, plc. That entity is a
United Kingdom Corporation, and so service would necessitate compliance with
international law. See Fed. R. Civ. P. 4(f). Snelling is an experienced pro se
litigator, and it is not this Court’s duty to guide him through the litigation process.
As HSBC Holdings, plc has not been served within the time set by
Fed.R.Civ.P.4(m), all claims against that entity will be dismissed without
prejudice.

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III. Conclusion
In sum, all claims against HSBC Holdings, plc, are dismissed without
prejudice for failure to obtain service. All claims against the Eastman Kodak
Company remain stayed. Two claims remain against HSBC Card Services, Inc.:
Count II for breach of contract and Count III for violation of the Missouri
Merchandising Practices Act.
This case will be set for a Rule 16 scheduling conference by separate order.
Accordingly,
IT IS HEREBY ORDERED that defendant HSBC Card Services, Inc.’s
motion to dismiss [# 44] is granted in part. Counts I and IV are dismissed with
prejudice. The motion is denied as to all other counts.
IT IS FURTHER ORDERED that all claims against HSBC Holdings, plc
are dismissed without prejudice.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 9th day of June, 2015.

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