United States District Court, S.D. Texas, Houston Division
H. Miller United States District Judge
Opinion & Order
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.
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.
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.
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.
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.
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.
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).
moves to dismiss all of Giovinale's claims, except those
arising under section 3.420 of the Texas Business and
Commerce Code. 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.