Grice v. Independent Bank

Filing 172

ORDER: The court GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment (ECF No. 147 ). The motion is granted to the extent Plaintiff alleges that Defendant breached its contract with Plaintiff by asse ssing Overdraft fees on APPSN transactions prior to March 9, 2017. Plaintiff's other claims remain.The court ADOPTS the Report and Recommendation's analysis of the South Carolina Door Closing Statute, (ECF No. 161 ), overrules Plaintiff 's objections thereto (ECF No. 166 ), and finds no reason for deviating from the magistrate judge's recommendation that the court deny class certification on that basis. Accordingly, Plaintiff's Motion for Class Certification is DENIE D. (ECF No. 129 ).Finally, the court declines Plaintiff's suggestion that this action should be transferred to the Western District of Michigan in lieu of denial of class certification. (ECF No. 166 at 16-17). Signed by Honorable Timothy M Cain on 3/26/24. (kmca) Modified on 3/26/2024: to edit text (add dash 16-17) (kmca).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Jamila Grice, on behalf of herself and
All others similarly situated,
Plaintiff,
v.
Independent Bank,
Defendant.

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Civil Action No. 7:20-cv-1948-TMC

ORDER

Before the court are two motions: Defendant Independent Bank’s Motion for
Summary Judgment, (ECF No. 147), and Plaintiff Jamila Grice’s Motion for Class
Certification (ECF No. 129). Both motions have been exhaustively briefed by the
parties. Having carefully reviewed the materials before it, the court concludes the
parties have adequately developed the issues in the record and, therefore, a hearing
is unnecessary to decide the matters before the court.
I. Background and Procedural History
Plaintiff brought this purported class action in the District of South Carolina
for breach of contract against Defendant, a regional bank organized under Michigan
law and maintaining a physical presence only in Michigan and Ohio. The alleged
factual basis for the breach of contract claim in this case is rooted in fees imposed
by Defendant in connection with electronic bank transactions by its account holders.
Plaintiff, a customer of Defendant now residing in South Carolina, (ECF No. 1 at 3),

alleges that three improper practices of Defendant constituted breach of contract.
First, Plaintiff contends Defendant improperly assesses and collects overdraft fees
(“OD fees”) on accounts that were never actually overdrawn. (ECF No. 1 at 1).
According to Plaintiff, Defendant imposes OD fees on debit card transactions that
are initially authorized against a positive account balance but later settled against an
insufficient balance. (ECF No. 39 at 2–3). Plaintiff labels such transactions as
“Authorize Positive, Purportedly Settle Negative”—or

APPSN—transactions.

(ECF Nos. 1 at 3; 129-1 at 1 n.2). Plaintiff argues that the Account Documents fail
to disclose the practice of imposing OD fees on APPSN transactions and that, as a
result, such fees breach the contract between Defendant and its account holders.
(ECF No. 1 at 5–6).
Second, Plaintiff asserts Defendant breached its agreement with her and other
customers by charging non-sufficient funds fees (“NSF fees”) multiple times on a
single transaction. (ECF No. 1 at 13–23). Plaintiff alleges that Defendant does not
disclose this practice and that the Account Documents are misleading in this regard.
Id. at 15–17.
Finally, Plaintiff alleges that Defendant assesses multiple out-of-network fees
(“OON fees”) on withdrawals from out-of-network ATMs when such withdrawals
are preceded by a balance inquiry. (ECF No. 1 at 23–29). “When an accountholder
uses a non-Independent ATM, the ATM owner charges a consumer a usage fee of $3
2

or $4. [Plaintiff] does not challenge that fee.” (ECF No. 39 at 4). Likewise, Plaintiff
does not dispute the propriety of Defendant’s practice of then charging “an OON Fee
. . . for the privilege of using a ‘foreign’ (out-of-network) ATM.” Id.

However,

Plaintiff “challenges the fact that [Defendant] charges two of these OON Fees for
ATM interactions when a ‘balance inquiry’ is performed as a lead-in to a cash
withdrawal,” arguing “it is improper [under the Account Documents] to charge three
separate [OON] fees for her 30-second [out-of-network] ATM usage.” Id. Plaintiff
alleges that Defendant’s disclosures to its customers are misleading, failing to
explain this practice. (ECF No. 1 at 25).
Plaintiff brought this purported class action on behalf of herself and all other
similarly situated customers against Defendant, asserting a single cause of action for
breach of contract based on the allegedly improper practices described above. (ECF
No. 1). In the Complaint, Plaintiff defines three separate proposed nationwide
classes—one for each type of allegedly improper fee:
[1] All accountholders who, during the applicable statute of
limitations, were charged OD Fees on APPSN Transactions on an
Independent checking account (the “OD Fees Class”).
[2] All accountholders who, during the applicable statute of
limitations, were charged multiple NSF Fees on the same item on an
Independent checking account (the “Multiple Fees Class”).
[3] All accountholders who, during the applicable statute of
limitations, were charged two OON Fees by Independent for a single
cash withdrawal at an out of network ATM (the “OON Fees Class”).
(ECF No. 1 at 29).
3

Early in this litigation, Defendant filed a Motion to Dismiss for Lack of
Personal Jurisdiction and for Failure to State a Claim. (ECF No. 13). Defendant
argued it lacks sufficient contacts with South Carolina that relate to the underlying
claims in this action, noting that Defendant maintains no physical presence or
employees or agents in South Carolina. (ECF No. 13-1 at 9–14). Defendant further
argued that Plaintiff’s breach of contract claim fails because “the Account
Documents expressly and unambiguously permit [Defendant] to charge the OD
Fees, NSF Fees, and OON Fees incurred by Plaintiff.” Id. at 14. Judge Dawson
denied the motion, (ECF No. 39), concluding that, although the court lacks general
personal jurisdiction over Defendant, Defendant has sufficient contacts to confer
specific personal jurisdiction, id. at 7. Specifically, Judge Dawson found that
Defendant “purposefully availed itself to South Carolina’s jurisdiction by
deliberately making its online banking services available to residents of South
Carolina and by maintaining South Carolina customers” and that Defendant
“purposefully engaged in long-term business activities in South Carolina, and it has
known for over a decade that [Plaintiff] was a resident of South Carolina.” Id. at 9.
Judge Dawson further determined that Plaintiff’s sole claim for breach of contract is
substantially connected to Defendant’s “online banking activities because it is
through the online account, Account Documents, and the corresponding transactions
which form the basis of Plaintiff’s claims.” Id. at 10. As for Defendant’s contention
4

that Plaintiff failed to state a claim upon which relief can be granted, Judge Dawson
concluded that the Account Documents “contain sufficient ambiguities which
prevent dismissal at this stage.” Id. at 12.
Defendant next filed a Motion for Partial Summary Judgment, (ECF No. 67),
seeking to limit any class to only those individuals residing in South Carolina or
individuals whose claims “arise” in South Carolina pursuant to the South Carolina
Door Closing Statute, S.C. Code Ann. § 15-5-150. 1 That is, Defendant sought a
ruling limiting the proposed classes “to individuals that can satisfy the South
Carolina Door Closing Statute.” Id. at 13. The Door Closing Statute “closes the
doors of South Carolina’s courts for suits . . . involving a foreign cause of action
brought by a foreign plaintiff against a foreign corporation,” Proctor & Schwartz,
Inc. v. Rollins, 634 F.2d 738, 739 (4th Cir. 1980). Federal courts in the District of
South Carolina sitting in diversity “must apply § 15-5-150 unless there are
affirmative countervailing federal considerations.” Id. at 739–40 (internal quotation
marks omitted). Judge Dawson denied the motion, concluding that the Door Closing

1

South Carolina’s Door Closing Statute provides:
An action against a corporation created by or under the laws of any other state
government or country may be brought in the circuit court: (1) By any resident of
this State for any cause of action; or (2) By a plaintiff not a resident of this State
when the cause of action shall have arisen or the subject of the action shall be
situated within this state.

S.C. Code Ann. § 15-5-150 (emphasis added).
5

Statute, “standing alone,” does not prevent the Plaintiff from representing a
nationwide class action that includes plaintiffs who are not residents of South
Carolina. (ECF No. 96 at 6 n.3). Judge Dawson noted that “Plaintiff herself can
satisfy the Door Closing Statute and, if the requirements of Rule 23 are met, she can
represent those similarly situated [non-residents] ‘when the cause of action shall
have arisen or the subject of the action shall be situated within this state.’” Id.
(quoting S.C. Code Ann. § 15-5-150) (emphasis added). Accordingly, Judge
Dawson ruled that “Defendant’s Motion for Summary Judgment seeking to dismiss
Plaintiff’s nationwide class claims and limiting the proposed class to individuals that
can satisfy the South Carolina Door Closing Statute (i.e., non-resident putative class
members) is rejected.” Id. at 6–7. 2
Subsequently, Defendant moved for reconsideration, arguing that the order
denying partial summary judgment had erroneously determined Plaintiff “can
represent a class of nationwide plaintiffs, the vast majority of which are Michigan
residents, because the subject of her personal action may be situated in South
Carolina.” (ECF No. 101 at 2). Stated differently, Defendant challenged Judge
Dawson’s order on the grounds that it had prematurely determined “that every

2

Judge Dawson also denied as moot Defendant’s Motion to Amend its Answer to add an
affirmative defense based on the South Carolina Door Closing Statute, (ECF No. 68), concluding
the Door Closing Statute implicates the Court’s subject matter jurisdiction and, therefore, may be
raised at any time, (ECF No. 96 at 2 n.1).
6

member of the proposed class has a contract with [Defendant] that was either made
or was intended to be performed in South Carolina.” Id. at 7.
In denying Defendant’s Motion for Reconsideration, (ECF No. 101), Judge
Dawson rejected Defendant’s reading of the order denying partial summary
judgment, clarifying that the court had denied partial summary judgment on the Door
Closing Statute argument because “[n]either party has offered any evidence to
support or refute whether Plaintiff’s three separate proposed nationwide classes,
whose members may include residents from other states, will satisfy Rule 23 (or the
Door Closing Statute).” (ECF No. 107 at 3) (first emphasis added).
Instant Motions for Class Certification (ECF No. 129) and for Summary
Judgment (ECF No. 147)
On August 9, 2022, this case was reassigned to the undersigned judge. (ECF
No. 108). After the case was reassigned, Plaintiff moved for certification of each of
the above-defined classes. (ECF No. 129). The motion was referred to a magistrate
judge for a Report and Recommendation. (ECF No. 143). After considering the
voluminous materials submitted by the parties, the magistrate judge issued a detailed
and thorough Report concluding that Plaintiff failed to establish the Rule 23
requirement of numerosity and recommending that the court deny Plaintiff’s motion
for class certification. (ECF No. 161 at 16). The magistrate judge determined that
Plaintiff had failed to satisfy the “numerosity requirement,” a threshold certification
requirement under Rule 23(a) of the Federal Rules of Civil Procedure (FRCP). The
7

magistrate judge also determined, alternatively, that “even if Plaintiff’s [numerosity]
allegations were otherwise sufficient, . . . Plaintiff’s attempt to establish numerosity
would be thwarted by the [South Carolina] Door Closing Statute.”

Id. at 8.

Accordingly, the magistrate judge recommended the court deny Plaintiff’s Motion
for Class Certification. Id. at 16. As discussion in more detail below, the parties
filed cross-objections to the Report. See (ECF No. 164 (Defendant’s objections));
(ECF No. 166 (Plaintiff’s objections)); (ECF No. 170 (Defendant’s reply to
Plaintiff’s objections)).
Finally, after Plaintiff filed the Motion for Class Certification but before the
magistrate judge issued the Report, Defendant filed a Motion for Summary
Judgment. (ECF No. 147). Defendant bases its motion on three grounds: (1) that
Plaintiff released all of her claims as a result of her membership in a prior settlement
class, id. at 7–12; (2) that the court lacks personal jurisdiction over Defendant, id. at
20–25; and (3) that the Door Closing Statute bars the claims of some putative class
members, id. at 13–20. Plaintiff filed a response in opposition to summary judgment
(ECF No. 153) to which Defendant replied (ECF No. 155).
Were the court to grant Defendant’s motion for summary judgment, such a
ruling could moot Plaintiff’s motion for class certification. See Muhammad v. Giant
Food Inc., 108 F. App'x 757, 760 (4th Cir. 2004) (noting the district court concluded
that the class certification motion was moot after granting summary judgment in
8

favor of the defendants as to the claims of each of the named plaintiffs); Richards v.
Direct Energy Servs., LLC, 915 F.3d 88, 106 (2d Cir. 2019) (affirming the district
court’s dismissal of the plaintiff's motion for certification as moot where the district
court granted summary judgment on all of plaintiff's claims); Sperling v. Stein Mart,
Inc., 291 F. Supp. 3d 1076, 1087 (C.D. Cal. 2018) (“When a defendant has obtained
summary judgment against putative class plaintiffs, a motion for class certification
becomes moot.”); Wu v. Sunrider Corp., No. 2:17-cv-04825-DSF, 2018 WL
2717863, at *1 (C.D. Cal. May 29, 2018) (denying class certification motion as moot
after granting summary judgment on all of the named plaintiff’s claims); Boykin v. 1
Prospect Park ALF, LLC, 993 F. Supp. 2d 264, 283 (E.D.N.Y. 2014) (“Because
summary judgment is granted on each of the named plaintiffs’ claims, it is
unnecessary to reach plaintiffs' motion for class certification.”). The court, therefore,
turns first to the Motion for Summary Judgment.
II. Defendant’s Motion for Summary Judgment (ECF No. 147)
Standard of Review
Summary judgment is appropriate only if the moving party “shows that there
is no genuine dispute as to any material fact and the [moving party] is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party may support or refute
that a material fact is not disputed by “citing to particular parts of materials in the
record” or by “showing that the materials cited do not establish the absence or
9

presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Rule 56 mandates entry of
summary judgment “‘against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial.’” Phillips v. Nlyte Software Am. Ltd.,
615 Fed. App’x 151, 152 (4th Cir. 2015) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986)).
“‘In determining whether a genuine issue has been raised, the court must
construe all inferences and ambiguities in favor of the nonmoving party.’” Sellers
v. Keller Unlimited LLC, 388 F. Supp. 3d 646, 649 (D.S.C. 2019) (quoting
HealthSouth Rehab. Hosp. v. Am. Nat’l Red Cross, 101 F.3d 1005, 1008 (4th Cir.
1996)). However, “‘[o]nly disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be counted.’” McKinney
v. G4S Gov’t Sols., Inc., 711 Fed. App’x 130, 134 (4th Cir. 2017) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party has the burden
of proving that summary judgment is appropriate. Bd. of Trs., Sheet Metal Workers’
Nat’l Pension Fund v. Lane & Roderick, Inc., 736 Fed. App’x 400, 400 (4th Cir.
2018) (citing Celotex Corp., 477 U.S. at 322–23). Once the moving party makes
this showing, however, the opposing party may not rest upon mere allegations or
10

denials, but rather must, by affidavits or other means permitted by the Rule, set forth
specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P.
56(c), (e); Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d
532, 540 (4th Cir. 2015).
Discussion
As an initial matter, the court declines to address Defendant’s summary
judgment motion to the extent it rests on the assertion that the court lacks personal
jurisdiction over Defendant. (ECF No. 147 at 20–25). Defendant previously
presented this argument in a dispositive motion early in this case. (ECF No. 13).
Judge Dawson considered the issue, which was fully briefed, and squarely rejected
it, determining that this court can exercise personal jurisdiction over Defendant in
this matter. (ECF No. 39). The court refuses to reconsider this contention and,
therefore, rejects it as a basis for summary judgment. See Multiscaff Ltd. v. APTIM
Fed. Servs., LLC, No. 1:23-cv-1369 (DJN), 2024 WL 234736, at *8 (E.D. Va. Jan.
22, 2024) (“Law of the case stands for the narrow proposition that ‘the same issue
presented a second time in the same case in the same court should lead to the same
result.’” (quoting LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en
banc))). Defendant also raises the Door Closing Statute for the second time in a
motion for summary judgment. (ECF No. 147 at 13–20); see (ECF No. 67). The
court declines to revisit Judge Dawson’s ruling that Defendant is not entitled to
11

summary judgment under Rule 56 on this particular basis. Therefore, the court turns
to Defendant’s argument that Plaintiff released all of her claims as a result of her
membership in a prior settlement class.
The Glaske Class Settlement
Defendant contends that there is no genuine issue of material fact that Plaintiff
was a member of the settlement class in a prior class action against Defendant on
related claims and, as such, has released her current claims against Defendant. (ECF
No. 147 at 7–12). In January 2018, the Circuit Court for Wayne County, Michigan,
approved a settlement in a class action against Defendant Independent regarding
overdraft fees and other matters in Glaske v. Independent Bank Corporation, (the
“Glaske Settlement”) Case No. 13-009983-CZ. (ECF No. 135-1). 3 Defendant
highlights this release language made part of the Glaske Settlement agreement:
Plaintiff and each Settlement Class Member, each on behalf of himself
or herself and on behalf of his or her respective heirs, assigns,
beneficiaries and successors, shall automatically be deemed to have
fully and irrevocably released and forever discharged Independent . . .
from any and all liabilities, rights, claims, actions, causes of action,
demands, damages, costs, attorneys' fees, losses, and remedies, whether
known or unknown, existing or potential, suspected or unsuspected,
liquidated or unliquidated, legal, statutory, or equitable, that result
from, arise out of, are based upon or relate to the conduct, omissions,
duties, or matters during the Class Period that were or could have been
alleged in the Actions, including, without limitation, any claims,
actions, causes of action, demands, damages, losses, or remedies
relating to, based upon, resulting from, or arising out of (a) the
3

Defendant and the named plaintiff in Glaske entered into the Settlement and Release in February
2017, (ECF No. 147-1), which was approved approximately one year later.
12

assessment of one or multiple Overdraft Fees on an Independent
Account or the amount of one or more Overdraft Fees assessed on an
Account, or (b) Independent's High-to-low Debit Card Transaction
Sequencing. The foregoing release includes, by way of example but not
limitation, any and all of the following to the extent they involve, result
in, or seek recovery or relief for Overdraft Fees or Independent's Highto-low Debit Card Transaction Sequencing: (1) the authorization,
approval, or handling of any Debit Card Transaction, (2) any failure to
notify or to obtain advance approval when a Debit Card Transaction
would or might cause an Independent Account to become overdrawn or
further overdrawn or an Overdraft Fee to be assessed, (3) any failure to
allow the holder of any Independent Account to opt out of overdrafts,
or to publicize or disclose the ability of the holder of any Independent
Account to opt out of overdrafts, (4) any failure to adequately or clearly
to disclose, in one or more agreements. Independent's High-to-low
Debit Card Transaction Sequencing, Overdraft Fees, or the manner in
which Debit Card Transactions are or would be approved, processed,
or posted to Independent Accounts; (5) any conduct or statements
encouraging the use of Independent Debit Cards; (6) any
advertisements relating to any of the foregoing; and (7) any and all
practices attacked in the Complaint, First Amended Complaint, and
Second Amended Complaint.
(ECF No. 135-2 at 28–29 (emphasis added)); (ECF No. 147 at 2–3).
The term “Overdraft Fee” is defined as “the fee assessed to a holder of an
Account for each item paid when the Account has insufficient funds to cover the
item. . . .” (ECF No. 135-2 at 9). The term “Debit Card Transaction” means “any
debit transaction effected with a Debit Card, including Point of Sale transactions . .
. and ATM transactions.” Id. at 7. And “High-to-low Debit Card Transaction
Sequencing” was defined to mean “Independent's former practice of sequencing an
Account's Debit Card Transactions . . . from highest to lowest dollar amount, which
results in some instances in the assessment of additional Overdraft Fees that would
13

not have been assessed if Independent had used . . . the chronological order in which
the transactions were initiated . . . or [sequenced] from lowest to highest dollar
amount.” Id. at 9.
The court’s order of judgment approving the Glaske Settlement indicated the
release language encompassed all claims, “known or unknown, suspected or
unsuspected, asserted or unasserted, liquidated or unliquidated, contingent or noncontingent, which now exist, or heretofore existed, or may hereafter exist, without
regard to the subsequent discovery of additional or different facts.” (ECF No. 135-1
at 2). “Plaintiff and all Settlement Class Members are hereby forever barred and
enjoined from asserting any of the Released Claims including, without limitation,
during any appeals from the Final Approval Order and this Final Judgment.” Id. at
5.
Notice of Glaske Settlement and Plaintiff’s Receipt of Settlement Funds
The Glaske settlement class consisted of “[a]ll Independent customers in the
United States who had one or more non-business accounts and who, during the Class
Period, incurred an Overdraft Fee as a result of Independent’s High-to-law Debit
Card Transaction Sequencing.” (ECF 135-1 at 2). The class period, in turn, ran from
July 31, 2007 through March 9, 2017. Id.
Pursuant to the Settlement agreement, Glaske class members received notice
in three different ways: via Mail, email and the settlement website. The postcard
14

mailer and the email notice contained identical language, informing the recipient that
“Independent Bank’s records show you are a Settlement Class Member,” describing
the terms of the proposed class settlement, and warning the account holder as
follows:
If you do not want to be legally bound by the Settlement, you must
exclude yourself from the Settlement Class by [a given date]. If you do
not exclude yourself, you will release your claims against Independent
Bank regarding the bank’s overdraft-related practices and fees, and will
not be able to sue Independent Bank for any claim relating to the
lawsuit. . . . The detailed notice available at the website explains how
to exclude yourself or object. . . .
(ECF No. 147-1 at 42, 44) (emphasis added). The settlement website, which was
referenced on the mailer and in the email notice, provided this same general
information, but in more detail: “If the settlement becomes final, Settlement Class
Members who do not timely request exclusion from the settlement will be releasing
Independent Bank from all of the claims described and identified in Section XIV of
the Settlement Agreement. This means you will no longer be able to sue Independent
Bank regarding any of the claims described in the Settlement Agreement.” Id. at 50.
The Glaske court determined that “Settlement Class Members received the
best practicable notice of the Settlement, which notice was reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of the
Action and the terms of the Settlement, and to afford them an opportunity to present
their objections or to request exclusion from the Settlement.” (ECF No. 135-1 at 2).

15

Defendant agreed to a settlement fund of $2,215,000.000 in Glaske. (ECF
No. 135-2 at 11). From the settlement fund, Defendant issued credits totaling
$419,489.27 to 10,371 existing Independent Bank accountholders in March 2018.
(ECF No. 147-2 at 1). 4 The account owned by Jamila Grice (formerly, Jamila
Thomas), the named Plaintiff in this action, was among those current accounts to be
credited a sum from the Glaske class settlement. Id. at 2. In Plaintiff’s case, she
received a credit of $21.58. Id. at 2. Plaintiff does not challenge that she was a
member of the Glaske settlement class, that she did not opt out of or seek to be
excluded from the Glaske settlement or object to its terms, or that she received a
portion of the Glaske settlement fund. The question becomes, then, whether Plaintiff
is precluded by the Glaske settlement from bringing the claims in this action.
Did Plaintiff Release Current Claims under the Glaske Settlement?
Defendant contends that, “[w]hile the Glaske matter primarily involved
Independent’s prior practice of high-to-low debit card transaction sequencing, the
language of the Glaske Settlement Agreement and Release is unambiguously not
limited to high-low sequencing.” (ECF No. 147 at 9). Defendant believes the Glaske
release language quoted above “unambiguously released any claim or damages for
any Overdraft Fee caused by a Debit Card Transaction (which is defined to include

4

Defendant also issued payments of $955,312.79 from the settlement fund to 27,193 former
account holders. (ECF No. 147-2 at 2).
16

an ATM transaction).” Id. Defendant suggests that because “the claims in the Glaske
matter primarily arose due to allegations of [Defendant]’s failure to properly disclose
its overdraft practices, which are precisely the issues in this case,” Plaintiff “also
released claims or damages based on ‘any failure to adequately or clearly to disclose,
in one or more agreements, Independent’s High-to-low Debit Card Transaction
Sequencing, Overdraft Fees, or the manner in which Debit Card Transactions are or
would be approved, processed, or posted to Independent Accounts.’” Id. at 9–10
(quoting Glaske Settlement Agreement at ¶ 114).
In response, Plaintiff makes two contentions. First, Plaintiff argues that class
action releases are governed by special rules of interpretation rather than state
contract law. (ECF No. 153 at 4–8). Citing precedent from the Ninth Circuit and
the Second Circuit, Plaintiff argues that, in the class action settlement context,
“‘future litigation is always governed by the doctrine of [claim] preclusion and never
by the settlement contract [and by extension, the release contained in the settlement
contract] directly.’” Id. at 4 (quoting Raquedan v. Volume Servs., Inc., No. 18-cv01139-LHK, 2018 WL 3753505, at *5 (N.D. Cal. Aug. 8, 2018)). Moreover, Plaintiff
suggests that in this context, claim preclusion requires more than that the current
claims arose out of the same transaction or occurrence but that the claims-to-beprecluded arose out of “the identical factual predicate” as the claims at issue in the
prior case. (ECF No. 153 at 5). Applying the identical factual predicate standard to
17

the claims asserted in Glaske and the instant action, Plaintiff urges the court to
recognize “the improper banking conduct at issue in Glaske was [Defendant]’s
practice of sequencing debit card transactions from high to low dollar amounts,” and
that such conduct “is not at issue here.” Id. at 6.
Defendant disagrees, arguing the notion that claim preclusion trumps the
release language in a settlement agreement lacks support under Michigan law, which
expressly applies to the terms of the Glaske Settlement agreement. (ECF No. 155 at
2); see (ECF No. 147-1 at 34 (“The Agreement shall be construed in accordance
with, and be governed by, the laws of the State of Michigan, without regard to the
principles thereof regarding choice of law.”)). According to Defendant, “[t]he fact
that a settlement is judicially approved or is a classwide settlement does not change
the release analysis: the release language still controls.” (ECF No. 155 at 2).
Defendant cites Weaver v. AEGON USA, LLC, No. 4:14-cv-03436-RBH, 2015 WL
5691836, at *30 (D.S.C. Sept. 28, 2015), modified, No. 4:14-cv-03436-RBH, 2016
WL 1570158 (D.S.C. Apr. 19, 2016), a class action wherein Judge Harwell noted
that a “‘suit can be barred by the earlier settlement of another suit in either of two
ways: res judicata or release.” Id. at *30 (quoting Reppert v. Marvin Lumber &
Cedar Co., 359 F.3d 53, 56 (1st Cir. 2004)) (emphasis added).
The court agrees with Defendant that even if the claims raised in a subsequent
purported class action are not barred by the doctrines of claim preclusion or res
18

judicata, such claims may still be barred by the release language set forth in a prior
settlement agreement. See, e.g., Weaver, 2015 WL 5691836, at *30 (analyzing
whether a prior class settlement precluded claims under the doctrines of res judicata,
collateral estoppel, and release); Reppert, 359 F.3d at 58–59 (considering whether
class claims were precluded by either the doctrines of res judicata or were released
by a class settlement and finding claims barred by terms of release). Accordingly,
Plaintiff’s claims in the instant action may be barred the Glaske Settlement
agreement, the terms of which, as noted above, are construed according to Michigan
law. And, under Michigan law, “[a]n agreement to settle a pending lawsuit is a
contract and is to be governed by the legal principles applicable to the construction
and interpretation of contracts.” Walbridge Aldinger Co. v. Walcon Corp., 525
N.W.2d 489 (Mich. Ct. App. 1994). “A settlement agreement is a binding contract.”
Reicher v. SET Enterprises, Inc., 770 N.W.2d 902 (Mich. Ct. App. 2009). The court
is to “read[] the agreement as a whole and attempt[] to apply the plain language of
the contract itself.” Edmore v. Crystal Auto. Sys., Inc., 911 N.W.2d 241 (Mich. T.
App. 2017). “The language of a contract is to be given its ordinary, plain meaning;
technical, constrained constructions should be avoided.” Id.
The court concludes that the release language set forth in the Glaske
Settlement Agreement encompasses Plaintiff’s claims in the instant action based on
Defendant’s imposition of Overdraft fees on APPSN transactions:
19

Plaintiff and each Settlement Class Member . . . shall automatically be
deemed to have fully and irrevocably released . . . Independent . . . from
any and all liabilities, rights, claims, . . . that result from, arise out of,
are based upon or relate to the conduct, omissions, duties, or matters
during the Class Period that were or could have been alleged in the
Actions, including, without limitation, any claims . . . based upon,
resulting from, or arising out of (a) the assessment of one or multiple
Overdraft Fees on an Independent Account or the amount of one or
more Overdraft Fees assessed on an Account . . . The foregoing release
includes, by way of example but not limitation, any and all of the
following to the extent they involve, result in, or seek recovery or relief
for Overdraft Fees . . . (1) the authorization, approval, or handling of
any Debit Card Transaction, . . . (4) any failure to adequately or clearly
to disclose, in one or more agreements, Independent’s . . . Overdraft
Fees, or the manner in which Debit Card Transactions are or would be
approved, processed, or posted to Independent Accounts.
(ECF No. 135-2 at 28–29).
By its plain terms, however, the Glaske Settlement Agreement did not
encompass Plaintiff’s current claims based on Defendant’s practice of charging
multiple NSF fees on a single transaction or its practice of assessing multiple OON
fees for the use of out-of-network ATMs when transactions are preceded by a balance
inquiry. Accordingly, the court concludes Plaintiff, as a result of her membership in
the Glaske Settlement class, released only her claims based on the assessment of
Overdraft fees on APPSN transactions.
Effect of “Class Period” on Release of OD Claims by Glaske Settlement
Plaintiff next argues that, “even if the Court agrees with Defendant [that the
Glaske Settlement terms control], the Glaske settlement by its terms releases only
those claims that accrued before March 9, 2017.” Id. at 8. Plaintiff relies upon
20

section XIV, ¶ 114, of the Glaske Settlement agreement, entitled “Releases,” which
provides:
Plaintiff and each Settlement Class Member . . . shall automatically be
deemed to have fully and irrevocably released and forever discharged
Independent . . . of and from any and all liabilities, rights, claims,
actions, causes of action, demands, damages, costs, attorneys’ fees,
losses, and remedies, whether known or unknown, existing or potential,
suspected or unsuspected, . . . that result from, arise out of, are based
upon or relate to the conduct, omissions, duties, or matters during the
Class Period that were or could have been alleged in the Actions . . . .
(ECF No. 147-1 at 28) (emphasis added). Because the Glaske class period ran from
July 31, 2007 through March 9, 2017, see (ECF No. 135-1 at 2), Plaintiff reasons,
therefore, that any claims based on transactions that occurred after March 9, 2017
were not released pursuant to the Glaske settlement. (ECF No. 153 at 8).
In response, Defendant asserts that “[t]he Class Period in the instant case
begins on May 19, 2016,” (ECF No. 155 at 4 (citing ECF No. 129-1 at 1), and,
therefore, that “Plaintiff’s breach of contract claims in the instant matter relate to
[Defendant’s] conduct, omissions, or duties with respect to overdraft and/or fee
disclosures that existed well before March 9, 2017” and that “Plaintiff could have
asserted the instant overdraft/fee claims before March 9, 2017, and by agreeing to
the release language that encompasses these claims, she has released them.” (ECF
No. 155 at 4).
The court is not convinced by Defendant’s argument. Although the release
language in the Glaske Settlement agreement is broad, the court concludes that it
21

does not encompass future conduct. Pursuant to the Glaske Settlement, Plaintiff
indeed released Defendant from all claims “known or unknown, existing or
potential,” but only to the extent such unknown claims “result from, arise out of, are
based upon or relate to the conduct, omissions, duties, or matters during the Class
Period that were or could have been alleged in the Actions . . . .” (ECF No. 147-1
at 28) (emphasis added). The Glaske Class Period ended March 9, 2017; any claim
based on conduct after March 9, 2017 necessarily could not constitute a claim
“result[ing] from, aris[ing] out of, . . . based upon or relate[d] to the conduct,
omissions, duties, or matters during the Class Period.” (ECF No. 147-1 at 28)
(emphasis added). Therefore, the court concludes that Plaintiff, pursuant to the plain
language of the Glaske Settlement Agreement, is barred from asserting claims
relating to the assessment of Overdraft fees on APPSN transactions only to the extent
such claims are based on conduct occurring prior to March 9, 2017. The court
GRANTS in part and DENIES in part Defendant’s Motion for Summary
Judgment (ECF No. 147). The motion is granted only to the extent Plaintiff alleges
that Defendant breached its contract with Plaintiff by assessing Overdraft fees on
APPSN transactions prior to March 9, 2017.
III. Plaintiff’s Motion for Class Certification (ECF No. 129)
Because Defendant is not entitled to summary judgment on every part of
Plaintiff’s breach of contract claim, the court must now consider the Motion for
22

Class Certification. (ECF No. 129). In order to obtain certification of a prospective
class, “Rule 23(a) requires that the prospective class comply with four
prerequisites”: (1) “numerosity”— that the class is so numerous that joinder of all
members would be impracticable; (2) “commonality”—that questions of law or fact
are common to the class; (3) “typicality”— that the claims or defenses of the
representative party are typical of those of the class; and (4) “adequacy of
representation”— that the representative party fairly and adequately protects the
interests of the class. EQT Prod. Co. v. Adair, 764 F.3d 347, 357 (4th Cir. 2014); see
Fed. R. Civ. P. 23(a). “Plaintiffs bear the burden of showing that a proposed class
satisfies the Rule 23 requirements,” Moyer v. Home Point Fin. Corp., No. cv-RDB20-3449, 2023 WL 6642663, at *4 (D. Md. Oct. 11, 2023), and “certification is
proper only if “the trial court is satisfied, after a rigorous analysis, that the
prerequisites of Rule 23(a) have been satisfied,” Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 350–51 (2011). If the threshold requirements under Rule 23(a) are met,
the action must also fall within one of three categories of class actions described in
Rule 23(b). In this case, Plaintiff asserts that this action meets the predominance
and superiority requirements of Rule 23(b)(3). See Gunnells v. Healthplan Servs.,
Inc., 348 F.3d 417, 424 (4th Cir. 2003).
Report of the Magistrate Judge

23

As noted previously, the magistrate judge recommended the court deny the
Motion for Class Certification (ECF No. 129) on two grounds. First, the magistrate
judge determined that Plaintiff had failed to satisfy Rule 23(a)’s threshold
“numerosity requirement”:
Plaintiff has not put forward any evidence showing the members
of the Proposed Classes are so numerous that joinder is impracticable.
Instead, Plaintiff simply argues that the class includes some number of
the approximately 50,000 . . . accountholders and that common sense
dictates the actual number of class members to be voluminous. [Id.]
However, Plaintiff has not proffered evidence showing how
many accounts were actually assessed any of the disputed fees at issue
in this case. The actual number of [Defendant’s] accountholders [that
were] assessed an allegedly improper fee may be thousands, but the
actual number also may be none. In short, Plaintiff has not produced
evidence from which this Court can conclude the numerosity
requirement is met under the “rigorous analysis” that Rule 23 requires.
. . . Although “[t]he court may certify a class based on a common sense
estimation of the class size if the precise number of class members is
unknown,” Talbott v. GC Servs. Ltd. P’ship, 191 F.R.D. 99, 102 (W.D.
Va. 2000), an “unsubstantiated allegation as to numerosity . . . is
insufficient to satisfy Rule 23(a)(1),” Hewlett v. Premier Salons Int’l,
Inc., 185 F.R.D. 211, 215 (D. Md. 1997).
...
Indeed, the undersigned finds it compelling that, despite this case
entering its third year of litigation, Plaintiff has not identified a single
class member other than herself and has not even tried to approximate
for the Court how many potential class members actually might be
culled from the total number of [Defendant’s] customer accounts. Thus,
“[w]ithout even a sliver of evidence to base a decision,” id., the Court
cannot find that Plaintiff has demonstrated numerosity, and the
undersigned recommends the motion to certify be denied on that basis.
(ECF No. 161 at 5–8) (footnotes omitted).

24

Alternatively, the magistrate judge also determined “even if Plaintiff’s
[numerosity] allegations were otherwise sufficient, . . . Plaintiff’s attempt to establish
numerosity would be thwarted by the Door Closing Statute.” Id. at 8. As an initial
matter, the magistrate judge acknowledged that Judge Dawson had disagreed with
Defendant’s argument based on the Door Closing Statute in the context of a summary
judgment motion but found it appropriate, in the context of a motion for class
certification on which Plaintiff has the burden, to “consider whether the Door
Closing Statute forecloses non-resident members from the classes” that Plaintiff
sought to certify. Id. at 9.
As previously noted, S.C. Code Ann. § 15-5-150—the Door Closing Statute—
“closes the doors of South Carolina’s courts for suits . . . involving a foreign cause
of action brought by a foreign plaintiff against a foreign corporation.” Proctor &
Schwartz, 634 F.2d at 739. The underlying purposes of the Door Closing Statute
include “favor[ing] resident plaintiffs over nonresident,” “provid[ing] a forum for
wrongs connected with the state while avoiding the resolution of wrongs in which
the state has little interest,” and “encourage[ing] activity and investment within the
state by foreign corporations without subjecting them to actions unrelated to their
activity within the state.” Hencely v. Fluor Corp., Inc., 475 F. Supp. 3d 464, 466–
67 (D.S.C. 2020).

25

Significantly, as the magistrate judge recognized, “the Fourth Circuit has
instructed that ‘a South Carolina federal court exercising diversity jurisdiction must
apply

§

15-5-150

unless

there

are

affirmative

countervailing

federal

considerations.’” (ECF No. 161 at 10 (quoting Proctor & Schwartz, 634 F.2d at 739–
40)); see Boisvert v. Techtronic Indus. N. Am., Inc., 56 F. Supp. 3d 750, 752 (D.S.C.
2014). Moreover, courts in this district have concluded that “South Carolina's DoorClosing Statute applies to non-named and non-resident class members.” Tomczak v.
United Servs. Auto. Ass’n, No. 5:21-cv-01564-MGL, 2022 WL 1022647, at *3
(D.S.C. Mar. 31, 2022); Hart v. Navy Fed. Credit Union, No. 2:21-cv-44-RMG, 2021
WL 2418459, at *3 (D.S.C. June 11, 2021) (noting that “each member of the putative
class must meet the requirements of [the Door Closing Statute]”).
The magistrate judge rejected Plaintiff’s argument that Fourth Circuit
precedent—specifically Central Wesleyan College v. W.R. Grace & Company, 6 F.3d
177, 186 n.3 (4th Cir. 1993), and Ward v. Dixie National Life Insurance Company,
257 F. App’x 620, 628 (4th Cir. 2007)—established that the Door Closing Statute
does not apply to absent class members. (ECF No. 161 at 11–12). The magistrate
judge distinguished Ward on the grounds that the court expressly stated that it did
“not find it necessary to decide” whether the district court correctly concluded that
the Door Closing Statue prevented the named plaintiff from representing out-of-state
plaintiffs, deciding instead that the named plaintiff failed to satisfy Rule 23(b)(3)’s
26

requirements. Id. (citing Ward, 257 F. App’x at 628). As to Central Wesleyan’s
comment that “[e]ven if non-South Carolina colleges were class representatives, it
is doubtful that the statute would apply because of the current countervailing federal
policy in favor of consolidating asbestos litigation,” 6 F.3d at 186 n.3, the magistrate
judge noted that the court was merely reflecting its understanding that “that the
Door-Closing Statute applies in federal diversity actions ‘unless there are affirmative
countervailing federal considerations.’” (ECF No. 161 at 11 (quoting Tomczak, 2022
WL 1022647, at *2–3)).
Finally, the magistrate judge rejected Plaintiff’s contention that countervailing
federal considerations exist in this case—created by Rule 23’s mechanism for
nationwide class actions—that override the state door closing policy. Id. at 14–15.
In pertinent part, the Report provides as follows:
The Court is unaware of any case law identifying Rule 23 as a unique
countervailing federal consideration to overcome the Door Closing
Statute. As stated above, the Door Closing Statute applies in federal
diversity actions “unless there are affirmative countervailing federal
considerations.” Szantay v. Beech Aircraft Corp., 349 F.2d 60, 64 (4th
Cir. 1965). As noted by the Fourth Circuit, Szantay identified “several
countervailing federal considerations: (1) the purpose in the grant of
diversity jurisdiction of avoiding discrimination against nonresidents;
(2) the policy of encouraging a state to enforce the laws of its sister
states; and (3) the fact that South Carolina was the only state in the
country in which the two defendants could be joined.” Proctor, 634
F.2d at 740. The Fourth Circuit “has since limited the need to apply
Szantay balancing to situations in which a plaintiff has no other
available forum in which to bring its action.” California Buffalo v.
Glennon-Bittan Grp., Inc., 910 F. Supp. 255, 257 (D.S.C. 1996)
(finding no countervailing federal considerations outweighed the
27

application of the statute where the plaintiff could have brought his
action in North Carolina rather than in South Carolina).
Plaintiff’s contention that Rule 23’s mechanism for a nationwide
class action suit constitutes a countervailing federal interest is not
supported by the Fourth Circuit law set forth above. As such, Plaintiff
has not identified any legitimate affirmative countervailing federal
consideration that would excuse the application of the Door Closing
Statute in this case. See Bumgarder, 593 F.2d at 573 (concluding the
plaintiff had failed to identify any countervailing federal considerations
requiring the district court to entertain his suit and to ignore the South
Carolina statute and noting “there was an alternate forum to the South
Carolina court where [the plaintiff] could gain full relief”). Here, as in
Bumgarder, Plaintiff has an alternate forum where she can gain relief.
Indeed, Plaintiff concedes as much in that she asserts “in the unlikely
event this Court is inclined to apply the door closing statute. . . this
Court should simply transfer this action to the Western District of
Michigan.” [Doc. 142 at 15.]
Id. at 14–15. Accordingly, the magistrate Judge concluded that “the Door Closing
Statute precludes the certification of a class that includes nonresident members,” id.
at 15, and, therefore, “constitutes an additional reason why she has failed to establish
numerosity,” id. at 16.

Based on these conclusions, the magistrate judge

recommended the court deny Plaintiff’s Motion for Class Certification. Id.
Standard of Review
The recommendations set forth in the Report have no presumptive weight, and
this court remains responsible for making a final determination in this matter. Elijah
v. Dunbar, 66 F.4th 454, 459 (4th Cir. 2023) (citing Mathews v. Weber, 423 U.S.
261, 270–71 (1976)). The court is charged with making a de novo determination of
those portions of the Report to which a specific objection is made, and the court may
28

accept, reject, modify, in whole or in part, the recommendation of the magistrate
judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). Thus, “[t]o
trigger de novo review, an objecting party ‘must object to the finding or
recommendation on that issue with sufficient specificity so as reasonably to alert the
district court of the true ground for the objection.’” Elijah, 66 F.4th at 460 (quoting
United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007)). However, the court
need only review for clear error “those portions which are not objected to—including
those portions to which only ‘general and conclusory’ objections have been made[.]”
Dunlap v. TM Trucking of the Carolinas, LLC, 288 F. Supp. 3d 654, 662 (D.S.C.
2017); see also Elijah, 66 F.4th at 460 (noting that “[i]f a litigant objects only
generally, the district court reviews the magistrate’s recommendation for clear error
only”). Furthermore, “‘the court is not obligated to consider new arguments raised
by a party for the first time in objections to the magistrate’s Report.’” Floyd v. City
of Spartanburg S.C., Civ. A. No. 7:20-cv-1305-TMC, 2022 WL 796819, at *9
(D.S.C. Mar. 16, 2022) (quoting Elliott v. Oldcastle Lawn & Garden, Inc., No. 2:16cv-01929-DCN, 2017 WL 1206408, at *3 (D.S.C. Mar. 31, 2017); see also Elijah,
66 F.4th at 460 n. 3 (noting “district court judges are not required to consider new
arguments posed in objections to the magistrate’s recommendation”).
Objections and Discussion

29

The court first considers Plaintiff’s objections to the magistrate judge’s
analysis, conclusions and recommendation based on the South Carolina Door
Closing Statute. Plaintiff first contends that the magistrate judge erred in applying
the Door Closing Statute in light of Farmer v. Monsanto Corp., 579 S.E.2d 325, 328
(S.C. 2003), in which the South Carolina Supreme Court considered the application
of the Door Closing Statute to a putative class action, construing it to mean “the class
itself cannot include members who would not be able to bring the action in their
individual capacities under the door-closing statute” and rejecting the argument that
the statute is satisfied as long as the class representatives are South Carolina
residents. See id. In conducting its analysis, the Farmer court distinguished Central
Wesleyan and stated “[t]he statute clearly does not apply to federal suits and the
Fourth Circuit’s ruling on its non-application in that case is irrelevant.” 579 S.E.2d
at 328. Plaintiff focuses on the latter sentence and argues that this court must defer
to the South Carolina Supreme Court’s interpretation of state law. (ECF No. 166 at
9). To bolster this objection, Plaintiff notes that “post-Farmer, there are no Fourth
Circuit decisions applying the Door Closing Statute in federal court.” Id. at 10.
The court disagrees. Farmer’s dicta that the Door Closing Statute does not
apply in federal court clearly is not an interpretation of state law to which this court
must defer—in contrast to Farmer’s construction of the statute itself to exclude class
members who would not be able to individually bring an action under the statute.
As explained in Tuttle Dozer Works, Inc. v. Gyro-Trac (USA), Inc., 463 F. Supp. 2d
30

544, 549 (D.S.C. 2006), which rejected an identical argument, “It has been long held
that federal courts sitting in diversity must apply section 15–5–150 unless
countervailing federal interests preclude its application” and “[d]espite [Farmer’s]
statement to the contrary, the statute continues to apply in diversity suits.” Id. at 549.
To underscore this point, there are numerous instances of federal courts in this
district applying S.C. Code Ann. § 15-5-150 in federal actions, many of which are
cited in the Report. (ECF No. 161 at 15 n.5); see, e.g., Tomczak, 2022 WL 1022647,
at *2; Lane v. Lane, No. 9:15-cv-1740-RMG, 2015 WL 5918955, at *7 (D.S.C. Oct.
8, 2015); Criteo SA v. Unique USA, Inc., No. 0:18-cv-02889-JMC, 2019 WL
3252958, at *4 (D.S.C. July 19, 2019). Accordingly, the court overrules this
objection.
Next, Plaintiff argues the Report is in error because the magistrate judge failed
to follow Fourth Circuit precedent “suggesting that the Door Closing Statute does
not apply to absent class members.” (ECF No. 166 at 10). The Fourth Circuit
decisions upon which Plaintiff relies are Central Wesleyanand Ward. The magistrate
judge addressed this authority in detail and ably disposed of Plaintiff’s argument.
(ECF No. 161 at 11–13). The court agrees with the analysis set forth in the Report
and finds that Plaintiff has failed to identify any error in the magistrate judge’s
analysis of these decisions. Accordingly, the court overrules this objection for the
reasons stated in the Report. 5

5

Plaintiff also cites Buffalo Seafood House LLC, et al., v. Republic Services Inc., et al., No. 7-22cv-1242-RMG, 2023 WL 3737865 (D.S.C. May 30, 2023) in support of her argument that the Door
Closing Statute does not apply. As Defendant points out, however, Buffalo Seafood does not opine
on the issue of absent class member and “refuses to apply the Door Closing Statute only because
31

In her next objection, Plaintiff argues the magistrate judge was wrong to reject
her contention that “the Door Closing Statute conflicts with Federal Rule of Civil
Procedure 23” and, therefore, “the federal rule must control.” (ECF No. 166 at 13).
Specifically, Plaintiff reasons that “the Door Closing Statute is in direct conflict with
Rule 23 because Rule 23 allows nationwide class actions (if the prerequisites are
met) and the Door Closing Statute flatly prohibits them.” Id. Thus, Plaintiff
contends that the federal rules, and not the Door-Closing Statute, apply to her claims.
Id. (relying on Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S.
393 (2010)). The magistrate judge rejected this argument in reliance on Judge
Lewis’s reasoning in Tomczak, 2022 WL 1022647, at *3. (ECF No. 161 at 13). This
court, too, finds Tomczak persuasive on this issue:
According to Plaintiffs, because the Door-Closing Statute
operates as a bar to nationwide class actions that are governed by Rule
23, then the Door-Closing Statute and Rule 23 conflict with one another
and, therefore, satisfy the first step in the Shady Grove analysis.
. . . Rule 23 sets forth the elements required for certification of a
class in federal court.... Conversely, the Door Closing Statute has
nothing to do with the requirements for class certification, and it does
address who may bring substantive claims on an individual basis. To
the contrary, the Door-Closing Statute deals with whether nonresident
plaintiffs, regardless of whether they are individual plaintiffs, class
representatives, or class members, are disallowed from suing
nonresidents for claims arising outside of South Carolina. Thus,
Plaintiffs are unable to prevail on their Shady Grove argument as to
Rule 23.
of countervailing federal interests—specifically, the consolidation of [multiple pending cases].”
(ECF No. 170 at 14 (citing Buffalo Seafood, 2023 WL 3737865 at *3)).
32

Tomczak, 2022 WL 1022647, at *3 (internal citations and quotation marks omitted).
The court agrees with this analysis and, therefore, overrules this objection.
Finally, Plaintiff objects to the magistrate judge’s finding that no
countervailing federal considerations exist in this case that would trump the
application of the Door Closing Statute. (ECF No. 166 at 14–16). One such
countervailing federal consideration, according to Plaintiff, is based on Rule 23’s
framework for bringing a nationwide class action. (ECF No. 166 at 15). The
magistrate judge properly rejected this line of reasoning, concluding that no such
countervailing federal considerations existed where, as here, Plaintiff likely could
have brought this action in another forum where Defendant is headquartered. (ECF
No. 166 at 14–15). To the extent that Plaintiff relies on Buffalo Seafood, No. 7-22cv-1242-RMG (D.S.C. May 30, 2023), to support her countervailing federal
concerns argument, (ECF No. 166 at 15–16), the court rejects it for the reasons stated
in Defendant’s reply—that the countervailing concern in Buffalo Seafood was the
policy favoring consolidation of 17 pending lawsuits across 12 different states. (ECF
No. 170 at 16). Such a consideration is not present in the case.
In sum, the court overrules each of Plaintiff’s objections to the magistrate
judge’s analysis of the applicability of the Door Closing Statute and the conclusion
that it precludes certification of the putative classes in this action. As a result, the
court declines to address the Report’s conclusion that Plaintiff failed to establish
33

numerosity, Plaintiff’s objections to the numerosity analysis or the new numerosity
evidence submitted after issuance of the Report.
IV. Conclusion
Based on the forgoing, the court GRANTS IN PART and DENIES IN PART
Defendant’s Motion for Summary Judgment (ECF No. 147). The motion is granted
to the extent Plaintiff alleges that Defendant breached its contract with Plaintiff by
assessing Overdraft fees on APPSN transactions prior to March 9, 2017. Plaintiff’s
other claims remain.
The court ADOPTS the Report’s analysis of the South Carolina Door Closing
Statute, (ECF No. 161), overrules Plaintiff’s objections thereto (ECF No. 166) 6, and
finds no reason for deviating from the magistrate judge’s recommendation that the
court deny class certification on that basis. Accordingly, Plaintiff’s Motion for Class
Certification is DENIED. (ECF No. 129).
Finally, the court declines Plaintiff’s suggestion that this action should be
transferred to the Western District of Michigan in lieu of denial of class certification.
(ECF No. 166 at 16–17). Plaintiff buried a request for transfer in passing, as a
failsafe, in other motions and responses to motions in this case. However, she has
never filed a motion for a transfer of venue. The court will not sua sponte transfer

6

The court also rejects and overrules Defendant’s objections challenging personal jurisdiction
once again. (ECF No. 164). This objection is unrelated to the Report and identifies no error in the
magistrate judge’s analysis or recommendation.
34

this case pursuant to 28 U.S.C. § 1404(a) where the issues have not been fully briefed
and the court is inclined to find that a transfer would not serve the interests of justice
where this action has been pending for over three years and Defendant has
vigorously litigated the issue of personal jurisdiction in a forum chosen by Plaintiff.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge

March 26, 2024
Anderson, South Carolina

35