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Giovinale v. JP Morgan Chase Bank, N.A.

United States District Court, S.D. Texas, Houston Division

March 23, 2017

Nancy Giovinale, Plaintiff,
v.
JP Morgan Chase Bank, N.A., Defendant.

          ORDER

          Gray H. Miller United States District Judge

         Memorandum Opinion & Order

         Pending before the court is defendant JP Morgan Chase Bank, N.A.'s (“Chase”) partial motion to dismiss plaintiff Nancy Giovinale's complaint (Dkt. 1, Ex. B). Dkt. 7. Having considered the motion to dismiss, response, reply, and applicable law, the court finds that Chase's partial motion should be GRANTED. Additionally, Giovinale's introductory and breach of fiduciary duty claims should be DISMISSED WITH PREJUDICE, and her breach of contract, breach of express warranty, and Texas Deceptive Trade Practices Act claims should be DISMISSED WITHOUT PREJUDICE. In her response, Giovinale requests leave to amend her complaint in the case of a dismissal. Dkt. 11 at 3. The court finds that Giovinale's request for leave to amend her complaint should be GRANTED.

         I. Background

         This case arises from Giovinale's claim against Chase for unauthorized withdrawals from her accounts at Chase. Dkt. 1, Ex. B at 3. Giovinale claims she has been a customer of Chase or its “predecessor in interest” for approximately ten years and is classified as a “Private Client.” Dkt. 1, Exs. B, F. Beginning around January 1, 2013, Giovinale alleges that there were approximately twenty-five (25) unauthorized withdrawals from her checking account and unauthorized early terminations of her Certificates of Deposit. Id. Further, Giovinale alleges that at least half of these unauthorized withdrawals were made at a Chase branch directly, and that Chase failed to verify her signature before cashing the checks. Dkt. 1, Ex. B at 3.

         Giovinale lives in Venezuela, and she monitors the account with the assistance of her daughter Maria Giovinale, who also lived abroad at the time of the alleged unauthorized withdrawals. Dkt. 1, Ex. F. Because the Giovinales lived abroad, the bank statements were sent to a mailing address in Venezuela. Id. When Giovinale did not receive bank statements, she assumed it was because of the poor service of the Venezuelan postal system. Id. Therefore, Giovinale claims that she did not discover the fraudulent withdrawals until June 2013 when her daughter returned to the United States, accessed the account, and found it was empty. Dkt. 1, Ex. F. Giovinale alleges the bank failed to notify her of any unusual activity during the seven months of fraudulent transactions. Id. Giovinale filed suit against the bank because it refused to provide fraud protection. Id. The bank notified Giovinale that its refusal was because Giovinale failed to notify the bank of the unauthorized transaction within thirty days of receipt of her first bank statement showing these transactions. Id.

         On September 6, 2013, Maria Giovinale wrote the bank and enumerated the alleged unauthorized transactions that took place. Id. The letter outlines a total of $152, 050 in unauthorized wire transfers and $323, 840 in checks cashed by an unauthorized person who successfully changed the address on the bank account and requested a checkbook from the bank several months after the fraud began. Id.

         On January 20, 2016, Giovinale filed an original petition against Chase in the 165th Judicial District Court for Harris County, Texas. Dkt. 1, Ex. B. On April 11, 2016, Chase removed the case to federal court. Dkt. 1. Chase filed a partial motion to dismiss Giovinale's claims except for those under section 3.420 of the Texas Business and Commerce Code. Dkt. 7. Giovinale responded, and Chase replied. Dkts. 11, 14.

         II. Legal Standard

         Federal Rule of Civil Procedure 8(a)(2) requires only that the pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009). “Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555. As part of the Twombly-Iqbal analysis, the court proceeds in two steps. First, the court separates legal conclusions from well-pled facts. Iqbal, 556 U.S. at 678-79. Second, the court reviews the well-pled factual allegations, assumes they are true, and then determines whether they “plausibly give rise to an entitlement of relief.” Id. at 679.

         Generally, when “considering a motion to dismiss for failure to state a claim, a district court must limit itself to the contents of the pleadings, including attachments thereto.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Here, the court will consider Giovinale's complaint (Dkt. 1, Ex. B) and the attached September 6, 2013 letter from Maria Giovinale to Chase (Dkt. 1, Ex. F).

         III. Analysis

         Chase moves to dismiss all of Giovinale's claims, except those arising under section 3.420 of the Texas Business and Commerce Code.[1] Dkt. 7. Giovinale's complaint does not completely enumerate her causes of action, but Chase's partial motion to dismiss addresses the following claims which appear within her complaint: an introductory claim, breach of contract, breach of common law and statutory express warranty, breach of fiduciary duty, and violation of the Texas Deceptive Trade Practices Act (“DTPA”) (Tex. Bus. & Com. Code Ann. §§ 17.41-17.63)). Dkt 7 at 1. Chase also argues that some of Giovinale's claims are pre-empted by section 3.420. Dkt. 7 at 6-10. In her response, Giovinale agrees that she is suing for “statutory violations of the Uniform Commercial Code, breach of common law and statutory express warranty for services, breach of fiduciary duty, breach of contract and deceptive trade practice.” Dkt. 11 at 1. The court will address each of these claims in turn.

         A. ...


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