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Case 1:16-Cv-00382-MJG Document 34 Filed 11/29/16 Page 1 of 23 Case 1:16-cv-00382-MJG Document 34 Filed 11/29/16 Page 1 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JEFFREY J. SILVER * Plaintiff * vs. * CIVIL ACTION NO. MJG-16-382 WELLS FARGO BANK, N.A., et al. * Defendants * * * * * * * * * * MEMORANDUM AND ORDER The Court has before it Defendants’ Motions to Dismiss [ECF Nos. 17 and 18] and the materials submitted relating thereto. The Court finds a hearing unnecessary. As discussed herein, the Court shall grant the instant motions but permit Plaintiff to file an Amended Complaint. I. BACKGROUND At times allegedly relevant hereto,1 Plaintiff, Jeffrey J. Silver (“Silver”) was the victim of a check fraud scheme perpetrated by one of his employees. The scheme involved the preparation of fraudulent checks drawn on Silver’s checking account at PNC Bank, National Association (“PNC”) and deposited in the employee’s account at Wells Fargo Bank, National 1 The Complaint is, in many respects, imprecise as to the timing of various matters. Case 1:16-cv-00382-MJG Document 34 Filed 11/29/16 Page 2 of 23 Association (“Wells Fargo”).2 In this lawsuit,3 Silver asserts claims against the Banks in nine Counts. Count I: Lack of Ordinary Care and Good Faith – Violation of Maryland Code, Commercial Law Article §§ 3-404, 3-405, 3-406 Count II: Breach of Presentment Warranties – Violation of Maryland Code, Commercial Law Article §§ 3-417, 4-208 Count III: Breach of Contract Count IV: Negligence as to PNC Count V: Negligence as to Wells Fargo Count VI: Strict Liability - Violation of Maryland Code, Commercial Law Article §§ 3-403, 4-401 Count VII: Negligent Hiring and/or Retention of Employees Count VIII: Constructive Fraud Count IX: Civil Conspiracy. [ECF No. 2]. 2 PNC and Wells Fargo are, collectively referred to as “the Banks” or “Defendants.” 3 Silver filed the instant suit against the Banks in the Circuit Court for Baltimore County, Maryland on November 23, 2015. The case was properly removed to the U.S. District Court for the District of Maryland on February 10, 2016, pursuant to 28 U.S.C. § 1332. [ECF No. 1]. 2 Case 1:16-cv-00382-MJG Document 34 Filed 11/29/16 Page 3 of 23 By the instant motions, the Banks seek dismissal of all claims pursuant to Rule4 12(b)(6). II. DISMISSAL STANDARD A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. A complaint need only contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (citations omitted). When evaluating a 12(b)(6) motion to dismiss, a plaintiff’s well-pleaded allegations are accepted as true and the complaint is viewed in the light most favorable to the plaintiff. However, conclusory statements or “a formulaic recitation of the elements of a cause of action will not [suffice].” Id. A complaint must allege sufficient facts “to cross ‘the line between possibility and plausibility of entitlement to relief.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557). Inquiry into whether a complaint states a plausible claim is “‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’” Id. 4 All "Rule" references herein are to the Federal Rules of Civil Procedure. 3 Case 1:16-cv-00382-MJG Document 34 Filed 11/29/16 Page 4 of 23 (quoting Twombly, 550 U.S. at 557). Thus, if “the well-pleaded facts [contained within a complaint] do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (alteration in original)). Generally, a motion to dismiss filed under Rule 12(b)(6) cannot reach the merits of an affirmative defense. Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). It is possible to evaluate such a motion, however, if all the facts necessary to the affirmative defense are clearly alleged on the face of the complaint. Id. But if the complaint does not clearly reveal the existence of a meritorious affirmative defense, it is inappropriate for the court to consider it under a Rule 12(b)(6) motion. Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993). III. DISCUSSION A. Factual Allegations5 At times relevant, Silver, a Baltimore City attorney employed as a legal assistant, Ms. Katherina Cheek6 (“the Assistant”). For “several years,” the Assistant stole 5 The “facts” herein are as alleged by Plaintiff and are not necessarily agreed upon by Defendants. 6 f/k/a/ Katherina Young. 4 Case 1:16-cv-00382-MJG Document 34 Filed 11/29/16 Page 5 of 23 “hundreds” of Silver’s blank checks and made them payable to herself, unidentified fictitious payees, friends, and her creditors. ¶ 8 [ECF No. 2].7 The Assistant forged Silver’s signature as the drawer on the checks, and she forged the payee’s indorsement on “the majority” of the checks so that she could cash or deposit them into her personal bank account at Wells Fargo. Id. The checks were often presented two or three at a time, contained no commercial stamp even though some were allegedly made out to commercial businesses, and were payable to non-account holders. Id. At no time did Silver authorize the Assistant to sign Silver’s name or indorse any checks. Wells Fargo, the “depositary bank,” accepted the stolen checks and presented them for payment to PNC, the “drawee.” PNC accepted and paid the forged checks. Silver first discovered the check fraud scheme on November 24, 2012, several years after the scheme had started. Silver asked PNC verbally and in writing to present warranty claims to Wells Fargo for accepting “highly irregular checks” with forged indorsements. ¶ 12. PNC refused to do so. Neither PNC nor Wells Fargo has paid or credited Silver the amounts charged against his account due to the check fraud scheme. 7 All ¶ references herein refer to paragraphs of the Complaint [ECF No. 2]. 5 Case 1:16-cv-00382-MJG Document 34 Filed 11/29/16 Page 6 of 23 B. Uniform Commercial Code Claims (Counts I, II and VI) Counts I, II, and VI present statutory claims under Titles 3 and 4 of the Maryland Uniform Commercial Code (“UCC”).8 The UCC governs negotiable instruments, including checks, and the relationship between banks and customers. Cf. Lema v. Bank of Am., N.A., 375 Md. 625, 633, 826 A.2d 504, 508–09 (Md. 2003)(“It is undisputed that the UCC applies to commercial transactions in Maryland, including the commercial dealings between a bank and its customer.”). 1. Timeliness Defenses a. Statute of Limitations Title 3 of the Maryland UCC provides that: an action (i) for conversion of an instrument, for money had and received, or like action based on conversion, (ii) for breach of warranty, or (iii) to enforce an obligation, duty, or right arising under this article and not governed by this section must be commenced within 3 years after the cause of action accrues. Md. Code Ann., Com. Law § 3-118(g)(2013 Repl. Vol.). The limitations period for Article 4 claims is the same. See id. § 4-111. The UCC does not specify when a cause of action accrues. The Complaint, filed November 23, 2015, does not allege when the check fraud scheme began, only that Silver discovered 8 The Maryland General Assembly adopted the UCC and codified it as the “Maryland Uniform Commercial Code — General Provisions.” Md. Code Ann., Com. Law § 1-101 (2013 Repl. Vol.). 6 Case 1:16-cv-00382-MJG Document 34 Filed 11/29/16 Page 7 of 23 it on November 24, 2012. Silver contends that the three-year limitations period commenced upon his discovery of the scheme while PNC contends that limitations commenced as to each check on the date the check was honored. In Maryland a discovery rule generally applies to civil causes of action. Hecht v. Resolution Trust Corp., 333 Md. 324, 334, 635 A.2d 394, 399 (Md. 1994). However, there are certain exceptions e.g., Advance Dental Care, Inc. v. Suntrust Bank, 906 F. Supp. 2d 442, 445 (D. Md. 2012)(holding the discovery rule does not apply to UCC conversion claims). The Maryland appellate courts have not determined whether the discovery rule applies to claims brought pursuant to UCC sections 3-403 to 3- 405 or 4-401. The Complaint does not adequately allege facts regarding the limitations issue, including facts regarding the date of discovery Silver relies upon. Moreover, parties have not adequately briefed the issue. b. The § 4-406 Twelve-Month Rule Section 4-406 of the UCC establishes a customer’s duty to report an unauthorized signature to the payor bank and requires a customer who receives an account statement to “exercise reasonable promptness in examining the statement or the items to determine whether any payment was not authorized because of an 7 Case 1:16-cv-00382-MJG Document 34 Filed 11/29/16 Page 8 of 23 alteration of an item or because a purported signature by or on behalf of the customer was not authorized.” Md.
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