NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREA F. DURKEE, individually No. 20-55920
and on behalf of all others similarly
situated, D.C. No. 3:20-cv-00347-DMS-LL
Plaintiff-Appellant,
MEMORANDUM*
v.
BANK OF AMERICA, N.A.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, Chief District Judge, Presiding
Submitted July 8, 2021**
Pasadena, California
Before: WATFORD, BUMATAY, Circuit Judges, and FREUDENTHAL,***
District Judge
Dissent by Judge WATFORD
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Nancy D. Freudenthal, United States District Judge for
the District of Wyoming, sitting by designation.
1
Andrea Durkee appeals the district court’s order granting Bank of America’s
(“BofA”) motion to dismiss Durkee’s first amended complaint. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm. Because the factual and procedural history
is familiar to the parties, we need not recount it in detail here.
BofA’s fee schedule assesses an international transaction fee of 3% of the U.S.
dollar amount of the transaction “if you use your card to obtain foreign currency
from an ATM. Visa or Mastercard converts the transaction into a U.S. dollar amount,
and the International Transaction Fee applies to that converted U.S. dollar amount.
ATM fees may also apply to ATM transactions. See ATM Fees section.” The ATM
fees section outlines, in detail, fees charged by BofA for using non-BofA ATMs and
only references independent ATM operator usage fees to note that they may “also”
be charged.
Durkee argues that the district court erred when it found that non-BofA
foreign ATM operator fees are part of the “transaction” to which the international
transaction fee applies. She argues that, because the fee schedule places the phrase
“ATM fees may also apply to ATM transactions” after the phrase “the International
Transaction Fee applies to that converted U.S. dollar amount,” all ATM fees,
including those assessed by foreign operators, should be considered separately and
not be included in the converted U.S. dollar amount.
2
Durkee’s arguments are not persuasive. The narrative structure she
emphasizes is followed by the specific direction to “[s]ee ATM Fees section.” That
section plainly refers to ATM fees assessed by BofA and does not apply to ATM
fees assessed by foreign ATM operators. Logically, therefore, the international
transaction fee must apply to foreign ATM fees as they are part of the converted U.S.
dollar amount of the transaction.
Durkee also argues that the district court abused its discretion in denying leave
to amend the first amended complaint. However, “[d]ismissal without leave to
amend is proper if it is clear that ‘allegation of other facts consistent with the
challenged pleading could not possibly cure the deficiency.’” Great Minds v. Office
Depot, Inc., 945 F.3d 1106, 1112 (9th Cir. 2019) (quotation omitted). Here, the
district court’s interpretation of the fee schedule was a question of law, which we
affirm. Thus, further amendment would have been futile. See id.
Durkee’s breach of contract claim fails. As her breach of the implied covenant
of good faith and fair dealing is based on the same allegations, it fails as well.
Durkee abandons her conversion claim.
AFFIRMED.
3
FILED
Durkee v. Bank of America, N.A., No. 20-55920 JUL 14 2021
MOLLY C. DWYER, CLERK
WATFORD, Circuit Judge, dissenting: U.S. COURT OF APPEALS
In my view, the term “transaction” in Durkee’s contract with Bank of
America is susceptible to more than one reasonable interpretation and is therefore
ambiguous. It strikes me as equally plausible to read the undefined term
“transaction” as referring either solely to the amount that a customer withdraws
from the ATM, or to the amount withdrawn plus any fees imposed by a third-party
ATM operator. None of the other provisions in Bank of America’s fee schedule
definitively rules out either reading. Because this case hinges on the interpretation
of an ambiguous contract term, the district court erred by dismissing it at the
pleading stage.