Doe v. Bank of America Corp.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
JOHN DOE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 16-253 (RMC)
)
BANK OF AMERICA )
CORPORATION, et al., )
)
Defendants. )
_________________________________ )

OPINION

John Doe, “a well-known international figure with a political background,” and

his daughter, Jane Doe, sue the Bank of America Corporation for negligence and breach of

contract (Counts I and II) because, after Mr. Doe’s 34-year personal banking relationship with

Bank of America, both his and his daughter’s accounts were summarily closed.1 Mr. Doe claims

damage to his reputation, alleging that the abrupt and unexplained closing of his account may

suggest to international corporations on whose boards he might serve, that he was engaged in

1
Compl. [Dkt. 1] ¶ 3. Before this case was transferred to the present Judge, plaintiffs sought
permission, in a one-paragraph motion, to use pseudonyms because John Doe “sits on numerous
boards of prominent international business entities” and “[h]aving his name published would
damage the relationship he has with those entities.” First Mot. to Use Pseudonyms [Dkt. 2] at 1.
Former Chief Judge Richard W. Roberts denied the motion for failure to “cite or provide any
analysis of the factors that this Court uses to weigh ‘one party’s need for anonymity against the
public’s right of access to court proceedings and the risk of unfairness to the opposing party.’”
3/1/2016 Order [Dkt. 3] at 1 (quoting Doe v. Teti, No. 15-1380, 2015 WL 6689862, at *1
(D.D.C. Oct. 19, 2015)). Plaintiffs filed a motion for reconsideration analyzing the relevant
factors, Mot. for Reconsideration [Dkt. 4], which Chief Judge Beryl Howell reviewed and
granted “upon finding that the plaintiffs have articulated a substantial reason to maintain the
privacy of their names that ‘outweighs the customary and constitutionally-embedded
presumption of openness in judicial proceedings.’” 4/28/2016 Order [Dkt. 5] at 3 (quoting
Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 188 (2d Cir. 2008)).

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illegal financial activities, such as money laundering, which he vehemently denies. See Compl.,

Introduction. Plaintiffs demand an explanation and money damages “for the embarrassment,

reputational damage, and business-related damages” they have suffered.2 See id. ¶¶ 21, 27.

Defendant, Bank of America Corporation, moves to dismiss the complaint. See Mot. to Dismiss

[Dkt. 14].

The Complaint initially named Merrill Lynch, presumably Merrill Lynch, Pierce,

Fenner & Smith, Inc., as a Defendant. In the Opposition, however, Plaintiffs agree to dismiss all

allegations against Merrill Lynch (Counts III and IV) with prejudice. See Opp’n [Dkt. 16] at 2-3

(“In the interest of judicial expediency, Plaintiff agrees to drop Counts III and IV against

Defendant Merrill Lynch with prejudice.”). The Court will dismiss Plaintiffs’ remaining counts

against the Bank of America Corporation for failure to state a claim upon which relief can be

granted. Fed. R. Civ. P. 12(b)(6).

I. FACTS

John Doe is an American citizen and a resident of Florida. His daughter, Jane

Doe, is an American citizen and a resident of Georgia. Plaintiffs bring this suit against Bank of

American Corporation (BAC)3 as “an attempt by an experienced world diplomat to ascertain the

2
Plaintiffs’ reliance on Mr. Doe’s long-standing banking relationship and international status to
support this suit calls into question whether Ms. Doe has made any viable claims. Indeed,
Plaintiffs’ Complaint and Opposition often refers to “Plaintiff” in the singular and “Mr. Doe,”
leading Bank of America Corporation to argue that Mr. Doe “effectively admits that Jane Doe
has no valid claims.” Reply [Dkt. 17] at 2. Because the Court ultimately finds no viable claims
for either Plaintiff, there is no need to address this argument.
3
As further explained below, BAC is a holding company that, at the time of Plaintiffs account
closures, indirectly owned Bank of America, N.A. (BANA). BANA is a nationally chartered
retail bank at which Plaintiffs were retail customers for years. Plaintiffs attribute actions to BAC
that should more appropriately be attributed to BANA. However, because BAC is the only
named Defendant in this action, and for purposes of clarity, the Court will describe the facts as
done by Plaintiffs, who make allegations against BAC and not BANA.

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reason why the banking relationship he had with [BAC] was summarily terminated even though

he had an excellent 34-year banking record with them.” Compl., Introduction. “The only reason

Plaintiff has filed this lawsuit is [BAC’s] adamant refusal to tell him the reasons why his account

was closed.” Id. Therefore, “certain parties (like international conglomerates seeking the

services of reputable board members like [Mr. Doe]) . . . [may] speculate that [Mr. Doe] had

engaged in or was complicit in money-laundering activities.” Id.

Mr. Doe states that during his 34 years of a continuous banking relationship with

BAC, “[t]here were no incidents of bounced checks or incidents of misdirected wire transfers,

and no need to generate any Suspicious Activity Reports (SARs) in connection with activity in

either [his or his daughter’s] account.” Id. ¶ 8. “On March 23, 2015, [Mr. Doe] received notice

of his [BAC] account’s closure, with no reason cited.” Id. ¶ 9. Jane Doe’s account was “closed

at the same time” without explanation. Id. “After much difficulty, explaining, and frustration,

Plaintiff John Doe was finally able to transfer his funds to J.P. Morgan Chase, where he now has

an account.” Id. ¶ 10.

The Complaint alleges that BAC received information during 2014 from “a

newspaper clipping or an inquiry from the U.S. Department of Treasury’s Financial Crimes

Enforcement Network (FinCEN) or another financial institution like Merrill Lynch[,] . . . [which]

appeared to implicate [Mr. Doe] in potential illicit activity.” Id. ¶ 12. Plaintiffs complain that

BAC summarily closed their accounts with no effort to inform them of the accusations against

Mr. Doe or investigate them. Plaintiffs allege that “the bank should have immediately contacted

[Mr. Doe] and investigated the matter in a comprehensive manner . . . to ascertain the veracity of

the allegations of misconduct made about him.” Id. ¶ 13. Through these actions and inactions

BAC is alleged to have violated its “duty to act with reasonable care at all times . . . [b]y closing

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the accounts before affording [Mr. Doe] an opportunity to explain any alleged wrongdoing

disclosed to the bank by federal authorities or other sources.” Id. ¶ 15. Plaintiffs allege that:

[BAC] decided not to investigate the spurious charges because: (a)
[Mr. Doe] maintained a home outside of America where money-
laundering guidelines were not as stringent as in America; (b) there
were additional requirements to maintain this account since he was
a politically exposed person (“PEP”), i.e., SARs would have to be
prepared and sent to Treasury on a regular basis; and (c) [BAC]
knew because monthly SARs would have to be prepared that there
would be an ongoing additional administrative expense to maintain
these accounts.

Id. ¶ 16. In so doing, BAC allegedly breached its covenant of good faith and fair dealing with

Plaintiffs because it chose the less-expensive alternative of unilaterally closing their accounts

without investigation and without informing them of its reasons. See id. Plaintiffs seek a court

order requiring BAC to explain in writing why it closed their accounts and a monetary award to

compensate “for the embarrassment, reputational damage, and business-related damages”

suffered. Id. ¶¶ 21, 27.

BAC responds that that “[t]he Complaint is devoid of any facts alleging any kind

of cognizable relationship at all, contractual or otherwise, between Plaintiffs and BAC.” Mot. to

Dismiss at 8. It explains that BAC is a holding company that, at the time of Plaintiffs’ account

closures, indirectly owned BANA, which is a nationally chartered bank based in North Carolina

with retail banking centers throughout the country. See id. at 2-3. The relevant bank accounts

were opened at BANA, not BAC, and the documents governing those accounts were between

Plaintiffs and BANA. See id. at 8; Reply, Ex. 3, BANA Deposit Agreement and Disclosures

Feb. 6, 2015 [Dkt. 17-3] (2015 BANA Agreement); Reply, Ex. 1, BANA Deposit Agreement

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and Disclosures June 19, 2010 [Dkt. 17-1] (2010 BANA Agreement).4 BANA is not a named

defendant in this action. BAC urges the Court to dismiss the Complaint against BAC on this

basis alone. See Mot. to Dismiss at 8.

Plaintiffs request leave to amend the Complaint against BAC “or against [BANA]

if that is deemed necessary by the Court as the proper named party against whom these claims

should be asserted.” Opp’n at 3. The Court will grant BAC’s Motion to Dismiss and will deny

Plaintiffs’ request to amend because, upon analysis, such an amendment would prove futile.

II. LEGAL STANDARDS

A. Motion to Dismiss

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).

A complaint must be sufficient “to give a 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) (internal

citations omitted). Although a complaint does not need detailed factual allegations, 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.” Id. A

court must treat the complaint’s factual allegations as true, “even if doubtful in fact,” id., but a

court need not accept as true legal conclusions set forth in a complaint, see Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim for relief that is “plausible on its face.”

4
Defendants attached to their pleadings a 2011 version of the Deposit Agreement and
Disclosures but portions are illegible in the version provided to the Court. See Reply, Ex. 2,
BANA Deposit Agreement and Disclosures Aug. 1, 2011 [Dkt. 17-2]. The Court will therefore
rely on the 2010 and 2015 versions of the Agreement which appear substantially similar to that
of 2011.

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Twombly, 550 U.S. at 570. A complaint must allege sufficient facts that would allow the court

“to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678-79.

In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged

in the complaint, documents attached to the complaint as exhibits or incorporated by reference,

and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508

F.3d 1052, 1059 (D.C. Cir. 2007).

B. Motion to Amend

If a plaintiff wants to amend a complaint more than “21 days after service of a

responsive pleading” it may only do so “with the opposing party’s consent or the court’s leave.”

Fed. R. Civ. P. 15(a). Rule 15 instructs courts to “freely give leave when justice so requires,” id;

nevertheless, “the grant or denial of leave to amend is committed to a district court’s discretion.”

Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (citing Forman v. Davis, 371 U.S.

178, 182 (1962)). The Supreme Court has stressed that leave to amend should be freely given

“[i]n the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory

motive on the part of the movant, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility

of amendment, etc.” Forman, 371 U.S. at 182, accord Miller v. Gray, No. 13-2018, 2016 WL

8671830, at *2 (D.D.C. Dec. 16, 2016). “The Court may deny leave to amend based on futility

‘if the proposed claim would not survive a motion to dismiss.’” Berry v. Coastal Int’l Sec. Inc.,

No. 12-1420, 2015 WL 13216805, *2 (D.D.C. July 24, 2015) (quoting Rumber v. District of

Columbia, 598 F. Supp. 2d 97, 102 (D.D.C. 2009)). A court may also deny a motion to amend

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“where the only result would be to waste time and judicial resources.” Ross v. DynCorp, 362 F.

Supp. 2d 344, 364 n.11 (D.D.C. 2005).

III. ANALYSIS

A. Motion to Dismiss

Plaintiffs bring two claims against BAC for negligence and breach of contract.

BAC has moved to dismiss these claims for failure to state a claim upon which relief can be

granted, Fed. R. Civ. P. 12(b)(6), noting that the banking relationship described in the Complaint

is between Plaintiffs and BANA, a retail bank indirectly owned by BAC, and not between

Plaintiffs and BAC.

“It is a general principle of corporate law deeply ‘ingrained in our economic and

legal systems’ that a parent corporation . . . is not liable for the acts of its subsidiaries.” United

States v. Bestfoods, 524 U.S. 51, 61 (1998) (quoting Douglas & Shanks, Insulation from Liability

Through Subsidiary Corporations, 39 Yale L.J. 193 (1929)). A parent corporation can be held

directly liable if the alleged wrong can be traced to the parent corporation or “‘the parent is

directly a participant in the wrong complained of.’” Id. at 64 (quoting Douglas & Shanks at

208). In the absence of direct liability, parent corporations may be held derivatively liable for a

subsidiary’s actions and plaintiffs may pierce the corporate veil when “the corporate form would

otherwise be misused to accomplish certain wrongful purposes, most notably fraud.” Id. at 62.

On a motion to dismiss, “the complaint is construed liberally in the plaintiffs’

favor, and [the Court] grant[s] plaintiffs the benefit of all inferences that can be derived from the

facts alleged,” but “need not accept inferences drawn by plaintiffs if such inferences are

unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp., 16 F.3d

1271, 1276 (D.C. Cir. 1994). Plaintiffs have pled no facts under either a direct or derivative

theory of liability and advanced no alternative theories under which BAC could be found liable.
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The bank agreement governing Plaintiffs’ accounts makes clear that the relevant banking

relationship was with BANA, not BAC: “In this agreement, ‘Bank of America’, ‘Bank’, ‘we’,

‘us’ and ‘our’ means Bank of American, NA.” 2015 BANA Agreement at 1; see also 2010

BANA Agreement at 1 (identical language). The Personal Signature Cards signed by Plaintiffs

indicated that by signing they “agree that this account is and shall be governed by the terms and

conditions set forth in . . . the Deposit Agreement and Disclosures.” Reply, Ex. 4, John Doe Sig.

Card [Dkt. 17-4]; Reply, Ex. 5, Jane Doe Sig. Card [Dkt. 17-5]. In light of Plaintiffs failure to

provide any facts to support a claim against BAC, the Motion to Dismiss will be granted.

B. Motion to Amend

Plaintiffs request leave to file an amended complaint to detail their claims against

BAC or BANA more fully “if that is deemed necessary by the Court as the proper named party

against whom these claims should be asserted.” Opp’n at 3. Because Plaintiffs’ claims fail even

if the Court construes Counts I and II as against BANA, an amendment to their Complaint would

be futile.

When adjudicating common law claims, the Court applies the law of the forum

state, Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (“Except in matters governed by the

Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the

state.”). In diversity cases, such as this one, federal courts apply the choice of law rules of the

jurisdiction in which they sit. See Chambers v. NASA Federal Credit Union, 222 F. Supp. 3d 1,

7 (D.D.C. 2016). Under District of Columbia law, “[t]he general rule is that parties to a contract

may specify the law they wish to govern, as part of their freedom to contract, as long as there is

some reasonable relationship with the state specified.” Norris v. Norris, 419 A.2d 982, 984

(D.C. 1980).

8
 The BANA Agreements from both 2010 and 2015 provide: “This Agreement,

and your and our rights and obligations under this Agreement, are governed by and interpreted

according to federal law and the law of the state where your account is located.” 2015 BANA

Agreement at 2; 2010 BANA Agreement at 2. The Deposit Agreements further stated: “We

ordinarily maintain your account at the banking center where we open your account. However,

we may transfer your account to another banking center in the same state or in a different state.”

Id.

Plaintiffs do not reveal where the BANA banking centers maintaining their

accounts were located. In the Complaint they suggest, without explanation, that the BANA

Agreement should be interpreted under either Georgia or California law, Compl. ¶ 25, but in

their Opposition rely on Georgia and Florida law, Opp’n at 11-12. Defendants infer, based on

Plaintiffs’ states of domicile, that the relevant bank accounts were maintained in Florida and

Georgia and therefore rely on those states’ laws. See Mot. to Dismiss at 9. The Court notes that

the Personal Signature Cards signed by Plaintiffs indicate that John Doe’s banking center was

located in Maryland and Jane Doe’s in Georgia, but cannot discern whether those are the states

in which the Does’ accounts were located at the time they were closed.

Despite the lack of clarity on the relevant state law, the standards for negligence

and breach of contract remains sufficiently similar across the relevant states to avoid the need for

a conflict of laws analysis and to convince the Court that a claim against BANA for negligence

would fail regardless of the applicable state law.

1. Negligence

Under Georgia, Florida, Maryland, and California state law, a negligence claim

has four elements: (1) a duty; (2) breach of that duty; (3) causation; and (4) damages. See Ileto

9
v. Glock, 349 F.3d 1191, 1203 (9th Cir. 2003) (“In order to establish negligence under California

law, a plaintiff must establish four required elements: (1) duty; (2) breach; (3) causation; and (4)

damages.”); Vason v. Bd. Of Edu. Of Montgomery Cty., No. 15-2228, 2017 WL 412528, at *2

(D. Md. Jan. 31, 2017) (“To establish a prima facie case for negligence under Maryland law, a

plaintiff must prove: (1) the defendant owed a duty to protect the plaintiff from injury; (2) the

defendant breached that duty; (3) the plaintiff suffered an injury; and (4) the defendant’s breach

was the proximate cause of the injury.”); Bartsh v. Costello, 170 So. 3d 83, 86 (Fla. Dist. Ct.

App. 2015) (“A negligence claim has four elements: (1) a duty by defendant to conform to a

certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection

between the breach and injury to plaintiff; and (4) loss or damage to plaintiff.”); Goldstein,

Garber & Salama, LLC v. J.B., 797 S.E.2d 87, 89 (Ga. 2017) (citations and internal quotation

marks omitted) (“It is well established that to recover for injuries caused by another’s

negligence, a plaintiff must show four elements: a duty, a breach of that duty, causation and

damages.”).

Essential to a successful negligence claim is the existence of a legally enforceable

duty, which Plaintiffs allege is a duty to act with reasonable care that encompasses “a duty . . . to

investigate” charges made against Mr. Doe and to “determine whether they were bona fide.”

Compl. ¶¶ 15, 20. Plaintiffs root the source of this duty in Mr. Doe’s “sterling 34-year

relationship” with BAC “and his international status, i.e., Plaintiff John Doe is held in high

regard all over the world.” Compl. ¶ 20.

The BANA Agreement acknowledges a duty of ordinary care toward Plaintiffs.

2015 BANA Agreement at 2; 2010 BANA Agreement at 2 (“We owe you . . . a duty of ordinary

care.”). Georgia, Florida, Maryland, and California have all adopted the Uniform Commercial

10
Code’s definition of “ordinary care,” which “in the case of a person engaged in business means

[1] observance of reasonable commercial standards, [2] prevailing in the area in which the

person is located, [3] with respect to the business in which the person is engaged.” U.C.C. § 3-

103(a)(9) (2002); Cal. Com. Code § 3103(a)(7) (West 2007); Fl. Stat. Ann. § 673.1031(1)(g)

(West 1992); Ga. Code Ann. § 11-3-103(a)(7) (2016); Md. Code Ann., Com. Law § 3-103(a)(7)

(West 2012).

Plaintiffs provide no facts to support their assertion that reasonable commercial

standards in any relevant state require banks to investigate totally external information that

impedes their banking relationship or to provide customers an opportunity to respond to that

information before a bank account may be closed, with prior notice, as here. Nor do Plaintiffs

point to any industry standard requiring banks to provide reasons for the closure of an account.

Contrary to Plaintiffs assertions that BANA owed them such a duty, the BANA Agreement

explicitly provided for either BANA or its customer to close a bank account “at any time without

advance notice.” 2015 BANA Agreement at 2; 2010 BANA Agreement at 2. Plaintiffs’ claim of

negligence cannot be saved by amendment adding BANA as a defendant.

2. Breach of Contract

The elements for a breach of contract claim vary slightly under California,

Florida, Georgia, and Maryland law, however, all jurisdictions require as an essential element of

the claim that the plaintiff demonstrate a valid contract that was breached. See Oasis W. Realty,

LLC v. Goldman, 250 P.3d 1115, 1121 (Cal. 2011) (“[T]he elements of a cause of action for

breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for

nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.”); Abbott

Labs., Inc. v. Gen. Elec. Capital, 765 So. 2d 737, 740 (Fla. Dist. Ct. App. 2000) (“The elements

11
of a breach of contract are: (1) a valid contract; (2) a material breach; and (3) damages.”); Layer

v. Clipper Petroleum, Inc., 735 S.E.2d 65, 69 (Ga. Ct. App. 2012) (citation and internal quotation

marks omitted) (“The elements for a breach of contract claim in Georgia are the (1) breach and

the (2) resultant damages (3) to the party who has the right to complain about the contract being

broken.”); RRC Northeast, LLC v. BAA Maryland, Inc., 994 A.2d 430, 442 (Md. 2010) (“[A]

plaintiff need only allege the existence of a contractual obligation owed by the defendant to the

plaintiff, and a material breach of that obligation by the defendant.”).

While all four states recognize an implied duty of good faith and fair dealing,

under Florida, Georgia, and Maryland law, a claim for breach of an implied duty of good faith

and fair dealing is not an independent cause of action. See Ins. Concepts & Design, Inc. v.

Healthplan Servs., Inc., 785 So. 2d 1232, 1234 (Fla. Dist. Ct. App. 2001) (“[A] claim for breach

of the implied covenant of good faith and fair dealing cannot be maintained under Florida law

absent an allegation that an express term of the contract has been breached.”); Stuart Enters.

Int’l, Inc. v. Peykan, Inc., 555 S.E.2d 881, 884 (Ga. Ct. App. 2001) (“[T]he failure to act in good

faith in performing a contract does not create an independent cause of action.”); Mount Vernon

Props., LLC v. Branch Banking And Tr. Co., 907 A.2d 373, 381 (Md. Ct. Spec. App. 2006)

(“[T]here is no independent cause of action at law in Maryland for breach of implied covenant of

good faith and fair dealing.”). The duty merely obliges contracting parties “to exercise good

faith in performing [their] contractual obligations; it does not obligate . . . affirmative actions”

not required by the contract itself. Parker v. Columbia Bank, 604 A.2d 521, 531 (Md. Ct. Spec.

App. 1992); see also Hosp. Corp. of Am. v. Florida Med. Ctr., Inc, 710 So. 2d 573, 575 (Fla.

Dist. Ct. App. 1998) (“[A] duty of good faith must relate to the performance of an express term

of the contract and is not an . . . independent term . . . which may be asserted as a source of

12
breach.”); Stuart Enters., 555 S.E.2d at 884 (citation and quotation marks omitted) (The implied

covenant “is a doctrine that modifies the meaning of all explicit terms in a contract, preventing a

breach of those explicit terms.”).

Under California law, a claim for breach of an implied duty of good faith and fair

dealing can exist independently of a breach of contract claim where defendant’s actions may

frustrate, if not technically breach, the express terms of a contract. See Love v. Fire Ins. Exch.,

221 Cal. App. 3d 1136, 1153 (1990). Nevertheless, even in California, as in Georgia, Florida,

and Maryland, an implied covenant cannot be “invoked to override the express terms of the

agreement between the parties.” Ins. Concepts & Design, Inc., 785 So. 2d at 1235; see also

Storek & Storek, Inc. v. Citicorp Real Estate, Inc., 100 Cal. App. 4th 44, 55 (2002) (“[A]n

implied covenant of good faith and fair dealing cannot contradict the express terms of a

contract.”); Griffin v. State Bank of Cochran, 718 S.E.2d 35, 43 (Ga. Ct. App. 2011) (citation

omitted) (“There can be no breach of an implied covenant of good faith where a party to a

contract has done what the provisions of the contract expressly give him the right to do.”);

Blondell v. Littlepage, 991 A.2d 80, 90-91 (Md. 2010) (holding that an implied duty is simply a

recognition of conditions inherent in expressed promises).

Plaintiffs allege BANA breached an implied covenant of good faith and fair

dealing, which would have necessitated: “(a) starting a dialogue with the source of the

allegations . . . ; (b) ascertaining the bona fides of such accusations before shutting down the

bank accounts; (c) calling in [Mr. Doe] to alert him to the nature of the accusations; and (d)

starting a comprehensive investigation . . . and issuing a report to [Mr. Doe].” Compl. ¶ 25.

Plaintiffs point to no contractual provision that has been breached, nor do they explain how the

performance of any contractual provision has been frustrated. Furthermore, an express provision

13
of the BANA agreement allows for either party to close the account at any time and for any

reason. 2015 BANA Agreement at 2; 2010 BANA Agreement at 2. The Does’ claim for breach

of contract or breach of implied covenant of good faith would thus fail under any applicable state

law even if they were to amend the Complaint to add BANA as a defendant.

C. Request for Additional Discovery

Finally, Plaintiffs seek discovery to locate the original contract, signed 34 years

ago, which they surmise “probably has a higher duty of care standard to be applicable [to]

Plaintiffs’ negligence claims here.” Opp’n at 10. Whether an earlier, and substantially different,

contract existed is irrelevant in light of Plaintiffs’ clear acceptance of the 2010 BANA

Agreement, as evidenced by their signature cards (dated 10/13/2010 and 7/26/2011) agreeing

“that this account is and shall be governed by the terms and conditions set forth in . . . the

Deposit Agreement and Disclosures.” Reply, Ex. 4, John Doe Sig. Card; Reply, Ex. 5, Jane Doe

Sig. Card. The 2010 BANA Agreement further specifies: “We may change this Agreement at

any time. We may add new terms. We may delete or amend existing terms. . . . When we

change this Agreement, the then-current version of this Agreement supersedes all prior versions

and governs your account.” 2010 BANA Agreement at 2. Again, Plaintiffs agreed to these

explicit terms.

The Court finds that both Mr. and Ms. Doe were bound by the most current

version of the BANA Agreement at the time their accounts were closed in 2015 and further

discovery to uncover an older deposit agreement would not further their claims. The Court

further notes that, at the point of a motion to dismiss, a court’s “role is not to speculate about

which factual allegations are likely to be proved after discovery.” Harris v. D.C. Water & Sewer

Auth., 791 F.3d 65, 70 (D.C. Cir. 2015) (citing Twombly, 550 U.S. at 556). Plaintiffs must allege

14
sufficient facts for the Court to reasonably infer the misconduct alleged. Iqbal, 556 U.S. at 678-

79. Plaintiffs have failed to do so here.

Having found that “‘the allegation of other facts consistent with the challenged

pleading could not possibly cure the deficiencies’” of Plaintiffs’ Complaint, the Court will

dismiss Plaintiffs’ claims against BAC with prejudice. Firestone v. Firestone, 76 F.3d 1205,

1209 (D.C. Cir. 1996) (quoting Jarrell v. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985)).

IV. CONCLUSION

For the reasons articulated above, Defendants’ Motion to Dismiss, Dkt. 14, shall

be granted. Plaintiffs have failed to state a claim for negligence or breach of contract against

Defendant Bank of America Corporation and have conceded all claims against Defendant Merrill

Lynch, Pierce, Fenner & Smith, Inc. Amending the Complaint to name Bank of American, N.A.

would be futile as a matter of law and the uncontested facts. A memorializing Order

accompanies this Opinion.

Date: August 11, 2017

/s/
ROSEMARY M. COLLYER
United States District Judge

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