WE Cork, Inc. v. Citizens Bank

Filing 15

///ORDER granting 7 defendant's motion to dismiss Count IV (breach of fiduciary duty); and denying 7 defendant's motion to dismiss Count III of plaintiff's complaint. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
WE Cork, Inc.,
Plaintiff
v.

Case No. 15-cv-85-SM
Opinion No. 2015 DNH 140

Citizens Bank, N.A.,
Defendant
O R D E R
WE Cork, Inc., a former banking customer of defendant,
Citizens Bank, N.A., brings this action asserting claims for
money damages arising from four counts: (1) negligence, (2)
conversion, (3) breach of contract, and (4) breach of fiduciary
duty.

Defendant moves to dismiss Count III and Count IV of

plaintiff’s complaint.

For the reasons stated, defendant’s motion to dismiss Count
III is denied, and its motion to dismiss Count IV is granted
without objection.

Findings of Fact
Accepting the factual allegations set forth in WE Cork’s
complaint as true, as is required for purposes of this motion,
the relevant facts are as follows.

When WE Cork opened its

corporate account, it entered into an account agreement with the
bank.

The defendant, Citizens Bank, is a successor in interest

to the original bank.

Citizens Bank has continued to service

plaintiff’s account pursuant to the account agreement.

Plaintiff

asserts that the account agreement established a contractual
relationship with defendant.

Plaintiff further contends that the

contractual relationship also gave rise to a fiduciary
relationship between the parties.

Subsequently, a former employee of WE Cork stole several
checks payable to plaintiff, totaling $80,720.44, and deposited
them into a third-party personal checking account at Citizens
Bank, without the endorsement required under the account
agreement.

Citizens Bank does not dispute these facts.

Rather, it

moves to dismiss plaintiff’s breach of contract claim because
plaintiff did not identify in its complaint either the contract
or the provision that is the subject of its claim.

Additionally,

Citizens Bank moves to dismiss plaintiff’s breach of fiduciary
duty claim, arguing that, as a matter of law, it does not owe
plaintiff any fiduciary duty.

Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable inferences in
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favor of the pleader.”
Cir. 2010).

SEC v. Tambone, 597 F.3d 436, 441 (1st

Although the complaint need only contain “a short

and plain statement of the claim showing that the pleader is
entitled to relief, Fed. R. Civ. P. 8(a)(2), that plain statement
must allege each of the essential elements of a viable cause of
action and “contain 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, 678 (2009) (citation and
internal punctuation omitted).

In other words, “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.”
U.S. 544, 555 (2007).

Bell Atl. Corp. v. Twombly, 550

Instead, the facts alleged in the

complaint must, if credited as true, be sufficient to “nudge[]
[plaintiff’s] claims across the line from conceivable to
plausible.”

Id. at 570.

If, however, the “factual allegations in the complaint are
too meager, vague, or conclusory to remove the possibility of
relief from the realm of mere conjecture, the complaint is open
to dismissal.”

Tambone, 597 F.3d at 442.

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Discussion
In its response to defendant’s motion to dismiss, plaintiff
conceded that it cannot maintain a cause of action for breach of
fiduciary duty.

Specifically, plaintiff acknowledged that it has

no evidence of the alleged fiduciary relationship.

Therefore,

plaintiff’s claim for breach of fiduciary duty must be dismissed.

The Court of Appeals for this circuit recently applied Iqbal
and Twombly in Cardigan Mountain Sch. v. New Hampshire Ins. Co.,
reiterating that a plaintiff’s “factual allegations need only be
enough to nudge the claim ‘across the line from conceivable to
plausible,’ thus ‘raising a reasonable expectation that discovery
will reveal evidence’” supporting a claim, and reminding district
courts in this circuit that a plaintiff’s burden is minimal at
the motion to dismiss stage.

Cardigan Mountain Sch., 787 F.3d

82, 83 (1st Cir. 2015).

In this case, plaintiff alleges that it entered into a
contract with defendant when it opened a corporate checking
account with Citizens Bank’s predecessor, and that Citizens Bank
continued to service said account in accordance with the terms of
the account agreement.

While plaintiff did not specifically

identify the contract or precise provision giving rise to its
substantive claims, the complaint plainly infers that the
contract mentioned is that which exists between WE Cork, Inc. and
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Citizens Bank in regard to the former’s corporate checking
account.

The pertinent documents are likely obtainable through

discovery, from Citizen Bank’s customer files.

WE Cork’s

complaint plainly provides "a plausible basis, beyond a mere
possibility, for believing that" it had a contract with Citizens
Bank that governs the terms of its corporate checking account
argued to be breached by defendant in this case.

Conclusion
Based on plaintiff’s concession, defendant’s motion to
dismiss Count IV (breach of fiduciary duty) is granted.

At this juncture, absent factual development of the record,
the court cannot determine whether a contract between WE Cork
Inc. and Citizens Bank was formed.

However, plaintiff’s

complaint adequately alleges the contract’s existence, and those
allegations and reasonable inferences are plausible, not merely
conceivable.

Additionally, in citing its corporate checking

account relationship with Citizens Bank as the subject matter of
the contract, plaintiff’s complaint cannot be construed as overly
vague or conclusory in regard to this particular matter.
Consequently, defendant’s motion to dismiss Count III of
plaintiff’s complaint is denied.

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SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
July 21, 2015
cc:

Mark F. Sullivan, Esq.
Brenna A. Force, Esq.
Kelly M. Malone, Esq.

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