WE Cork, Inc. v. Citizens Bank, N.A.

2015 DNH 140

• Court: District Court, D. New Hampshire
• Decided: July 21, 2015
• Docket: 15-cv-85-SM
• Status: Published

Opinion

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

2 favor of the pleader.” SEC v. Tambone, 597 F.3d 436, 441 (1st

Cir. 2010). 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.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007). 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.

3 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

4 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.

5 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.