DICKSON v. WELLS FARGO BANK (2025)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

THIS CAUSE comes before the Court upon Defendants’ Motion to Dismiss Plaintiff's Second Amended Complaint (the “Motion”) [ECF No. 34]. The Court has reviewed the Motion, Plaintiff's Response in Opposition [ECF No. 35], Defendants’ Reply [ECF No. 38], and the full record [see ECF Nos. 25, 33]. For the reasons explained below, the Motion [ECF No. 34] is GRANTED IN PART and DENIED IN PART.

FACTUAL AND PROCEDURAL BACKGROUND 1

The Court incorporates the factual and procedural background as laid forth in the Court's Order Granting Defendants’ Motion to Dismiss Plaintiff's Initial Complaint [ECF No. 25], supplementing the background where necessary. In brief, Plaintiff sues Defendants over two unauthorized wire transfers sent from Plaintiff's bank account at Wells Fargo Bank, N.A. (“Wells Fargo”), to accounts held at Discover Bank (“Discover”), seeking to recover the $97,100.00 in wired funds [ECF No. 33].

In Plaintiff's Complaint (the “Initial Complaint”) [ECF No. 1-2], Plaintiff alleged claims for (Count I) violations of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), (Count II) negligence, (Count III) violations of 15 U.S.C. § 1693g, and (Count IV) unjust enrichment. Defendants moved to dismiss [ECF No. 16], after which the Court granted Defendants’ Motion to Dismiss (the “Dismissal Order”) [ECF No. 25]. The Court dismissed Counts I and III with prejudice and dismissed Counts II and IV without prejudice, giving Plaintiff an opportunity to file an amended pleading [ECF No. 25].

Plaintiff then filed his First Amended Complaint on June 2, 2025 [ECF No. 26], and then with the Court's permission [ECF No. 32], filed his Second Amended Complaint (the “SAC”) on June 11, 2025 [ECF No. 33; see ECF No. 32 (reiterating final amendment)]. In the SAC, Plaintiff brings six counts, all under Florida law: (I) negligence, (II) unjust enrichment, (III) breach of contract, (IV) failure to maintain commercially reasonable security procedures, (V) noncompliance with security procedures, and (VI) breach of fiduciary duty. Count II is brought against Discover; all other counts are lodged against Wells Fargo.

On June 25, 2025, Defendants moved to dismiss the SAC [ECF No. 34]. The Motion is ripe for adjudication [ECF Nos. 35, 38].

LEGAL STANDARD

Rule 8(a)(2) requires complaints to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To avoid dismissal under Rule 12(b)(6), a complaint must allege facts that, if accepted as true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see Fed. R. Civ. P. 12(b)(6). A claim for relief is plausible if the complaint contains factual allegations that allow “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, 173 L.Ed.2d 868 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 545, 127 S.Ct. 1955). Conclusory allegations, unwarranted deductions of facts, or legal conclusions masquerading as facts will not prevent dismissal. Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

ANALYSIS

For the reasons that follow, the Court grants Defendants’ Motion in part and dismisses Counts I, II, III, and VI with prejudice. The Court, however, denies Defendants’ Motion as to Counts IV and V.

I. Count I (negligence) is barred by the independent tort doctrine.

The Court agrees with Defendants that Count I of Plaintiff's SAC, which alleges a claim of negligence against Wells Fargo, is barred by the independent tort doctrine. Plaintiff's repleaded negligence claim in the SAC runs headfirst into the same independent tort doctrine bar as the dismissed negligence claim from the Initial Complaint.

To properly plead negligence under Florida law, a plaintiff must allege: (1) a duty, (2) breach of that duty, (3) causation, and (4) harm. Fla. Dept. of Corrs. v. Abril, 969 So. 2d 201, 205 (Fla. 2007) (“[A] plaintiff must establish that the defendant owed a duty, that the defendant breached that duty, and that this breach caused the plaintiff damages.”). In the Dismissal Order, the Court explained that, “to bring a negligence claim under Florida law, a party must demonstrate that ‘the tort is independent of any breach of contract claim’ ” [ECF No. 25 p. 9 (quoting Tiara Condo. Ass'n v. Marsh & McLennan Cos., 110 So. 3d 399, 408 (Fla. 2013) (Pariente, J. concurring))]. The Court also pointed out that Plaintiff's negligence claim, at bottom, alleged that “Wells Fargo negligently performed its contractual duties to its depositor” [ECF No. 25 p. 9]. The Court further noted that “Plaintiff offer[ed] no authority in support of his contention that such duties are recognized under Florida law as independent from a bank's contractual duties under a deposit agreement like the one at issue here” [ECF No. 25 p. 10].

Plaintiff's repleaded negligence claim again runs afoul of these principles. In Count I, Plaintiff alleges that Wells Fargo “owed a duty to Plaintiff, as its customer, to provide a commercially reasonable security method against unauthorized payment orders” [ECF No. 33 ¶ 59 (emphasis added)]. “[T]he relationship between a bank and its depositing customer is contractual.” MJZ Corp. v. Gulfstream First Bank & Tr., N. A., 420 So. 2d 396, 397 (Fla. Dist. Ct. App. 1982) (citation omitted). Just as in his Initial Complaint, Plaintiff's negligence allegations in the SAC still stem from Wells Fargo's “contractual duties to its depositor” [ECF No. 25 p. 9]. Thus, Plaintiff's negligence claim alleges duties based upon Plaintiff's contractual customer relationship with Wells Fargo instead of any independent tortious conduct, so Plaintiff's negligence claim is again barred under the independent tort doctrine.

In his Response, Plaintiff asserts that Wells Fargo violated a “statutory duty,” pointing to Florida's statutes adopting Article 4A and framing them as statutes “designed to protect a class of persons from their ability to protect themselves” [ECF No. 35 p. 10]. But nowhere in Count I of the SAC does Plaintiff allege Wells Fargo breached a statutory duty. The closest Plaintiff comes to alleging a breach of statutory duty is Plaintiff's allegation that Wells Fargo “failed to promptly initiate and complete reasonable error resolution investigations by statute (including Article 4A of the UCC, as further alleged in Counts IV and V) and the general duties alleged herein” [ECF No. 33 ¶ 69]. Yet even this allegation is predicated entirely on Plaintiff's relationship to Wells Fargo as its customer, which is once again a contractual relationship.

Further, even if Plaintiff had alleged a statutory duty under Article 4A, the purpose of Article 4A was not to “protect a class of persons from their ability to protect themselves,” [ECF No. 35 p. 10], but rather “ ‘to use precise and detailed rules to assign responsibility, define behavioral norms, allocate risks and establish limits on liability.’ ” Corfan Banco Asuncion Paraguay v. Ocean Bank, 715 So. 2d 967, 970 (Fla. Dist. Ct. App. 1998) (quoting U.C.C. § 4A-102 cmt. (A.L.I. & Unif. L. Comm'n)). As the Official Comment to Article 4A explains,

Funds transfers involve competing interests—those of the banks that provide funds transfer services and the commercial and financial organizations that use the services, as well as the public interest. These competing interests were represented in the drafting process and they were thoroughly considered. The rules that emerged represent a careful and delicate balancing of those interests and are intended to be the exclusive means of determining the rights, duties and liabilities of the affected parties in any situation covered by particular provisions of the Article. Consequently, resort to principles of law or equity outside of Article 4A is not appropriate to create rights, duties and liabilities inconsistent with those stated in this Article.

Id. (quoting U.C.C. § 4A-102 cmt. (A.L.I. & Unif. L. Comm'n)). Thus, the point of Article 4A is to provide a clear balancing of risks and responsibilities with fund transfers, not to create a statutory duty to protect a class of persons. Plaintiff has therefore failed to allege any duty “independent of any breach of contract claim,” and Plaintiff's negligence claim is once again barred by the independent tort doctrine. See Tiara Condo., 110 So. 3d at 408.

Thus, the Court dismisses Count I with prejudice. The Court cautioned Plaintiff in the Dismissal Order that he would have “one final opportunity to replead” his negligence claim [ECF No. 25 p. 10]. Because the SAC represented Plaintiff's one final opportunity to replead [ECF Nos. 25, 32], and because the record supplies no reason at this juncture to authorize a third amendment of this deficient claim [see ECF Nos. 1-2, 26, 33], the Court dismisses Plaintiff's negligence claim with prejudice.²

II. Plaintiff fails to allege a retained benefit in Count II.

Plaintiff's repleaded claim again fails to sufficiently plead unjust enrichment against Discover. A claim for unjust enrichment under Florida law requires showing that “(1) the plaintiff has conferred a benefit on the defendant; (2) the defendant voluntarily accepted and retained that benefit; and (3) the circumstances are such that it would be inequitable for the defendants to retain it without paying the value thereof.” Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1337 (11th Cir. 2012) (citing Fla. Power Corp. v. City of Winter Park, 887 So. 2d 1237, 1242 n.4 (Fla. 2004)). As the Court noted in the Dismissal Order, merely presuming that Discover benefited from these transfers and failing to allege that the funds remained in a Discover bank account is insufficient to state a claim for unjust enrichment, even under Federal Rule of Civil Procedure 12(b)(6) [ECF No. 25 p. 11]. Plaintiff's Count II repeats these shortcomings.

In Count II, Plaintiff alleges that Discover received and retained a benefit merely by “accepting” the wire transfers from Wells Fargo [ECF No. 33 ¶¶ 77, 81]. While Plaintiff speculates as to what Discover “may” be able to do with funds when funds are “held in an account” [ECF No. 33 ¶ 79], Plaintiff never alleges that Discover retained those funds or that Discover actually holds the funds in any account. The only benefit Plaintiff alleges which perhaps could arise from the mere acceptance of the wire transfers is Plaintiff's speculation that the transfer “would have been subject to Discover's fees” [ECF No. 33 ¶ 78]. But Plaintiff has not alleged any specific fee amount or fee type that Discover charged, and Plaintiff contradicts his vague allegation of fees just a few paragraphs later by alleging that “no ‘incoming wire fee’ may be charged” [ECF No. 33 ¶ 80]. The only specific fee amount Plaintiff mentions is $15 that Plaintiff “upon information and belief” asserts may have been charged by a potential intermediary bank, not Discover [ECF No. 33 ¶ 80]. Thus, Plaintiff has failed to plead specific facts that show Discover has retained a benefit from its acceptance of the wire transfers.

Thus, Count II is dismissed with prejudice. As with Count I, the Court advised Plaintiff in the Dismissal Order that he would have “one final opportunity to replead” his unjust enrichment claim and then afforded an additional amendment opportunity after that [ECF No. 25 p. 12; ECF No. 32]. The Court sees no reason for additional repleading; nor does Plaintiff even seek repleading or advise of any additional facts he could add to plead a plausible claim for unjust enrichment.

III. Plaintiff's Count III fails to allege facts plausibly establishing a breach of contract.

Plaintiff's Count III fails to allege facts plausibly establishing a breach of contract. Count III alleges that Plaintiff's written contract (the “Deposit Agreement”) [ECF No. 33-1] required Wells Fargo to “cancel pay requests made by Plaintiff” and “terminate the wire transfers” [ECF No. 33 ¶¶ 85, 89]. Defendants argue that Plaintiff failed to identify any specific contractual provision imposing such obligations and that no such obligations exist in the contract [ECF No. 34 pp. 15–17]. Plaintiff responds that Plaintiff need only allege “a breach of agreement, and not a specific term” in order to “state of cause of action for breach of contract” [ECF No. 35 p. 14].

“For a breach of contract claim, Florida law requires the plaintiff to plead and establish: (1) the existence of a contract; (2) a material breach of that contract; and (3) damages resulting from the breach.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir. 2009) (citation omitted). “[A] well-pled complaint alleging breach of a written contract must not only attach a copy of the contract but also make allegations as to which contractual provisions were breached.” City of Delray Beach v. Sherman Williams Am. Legion, Post 188, 358 So. 3d 440, 443 (Fla. Dist. Ct. App. 2023); see also Toca v. Tutco, LLC, 430 F. Supp. 3d 1313, 1324 (S.D. Fla. 2020) “At a minimum, a claim for breach of contract must identify ‘the actual terms of the contract allegedly breached.’ ” (quoting Herssein Law Grp. v. Reed Elsevier, Inc., 594 F. App'x 606, 608 (11th Cir. 2015)).

Here, not only has Plaintiff failed to identify any specific provision imposing Wells Fargo's supposed contractual obligations, but the Court, upon reviewing Deposit Agreement [ECF No. 33-1], also cannot find any such obligations in that contract. Plaintiff asserts that “Wells Fargo has a 60-day window to recall these funds ․ and retrieve Plaintiff's funds following the Plaintiff's request/providing notice of the improper wire transfers” [ECF No. 35 pp. 14–16]. But this 60-day window to recall improper wire transfers is nowhere to be found within the Deposit Agreement [ECF No. 33-1]. Rather, the only 60-day windows in the Deposit Agreement deal with “card transactions” [ECF No. 33-1 p. 16] and electronic funds transfers under Regulation E [ECF No. 33-1 p. 21].³

Thus, Plaintiff has failed to identify “which contractual provisions were breached,” Sherman Williams Am. Legion, Post 188, 358 So. 3d at 443, and Plaintiff's allegations are unsupported by the Deposit Agreement in any event [ECF No. 33-1]. See Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir. 2009) (“It is the law in this Circuit that when the exhibits contradict the general and conclusory allegations of the pleading, the exhibits govern.” (quotation omitted)). The Court therefore dismisses Count III with prejudice. Repleading would not alter the plain text of Plaintiff's contract with Wells Fargo, and the Court warned Plaintiff that the SAC represented “Plaintiff's final opportunity to amend in this action” [ECF No. 32].

IV. Counts IV and V survive Rule 12(b)(6).

In Counts IV and V, Plaintiff alleges that Wells Fargo failed to maintain commercially reasonable security procedures (Count IV) and did not comply with its security procedures (Count V) [ECF No. 33 ¶¶ 93–113]. Defendants argue that Plaintiff entered into an Online Access Agreement with Wells Fargo which detailed Wells Fargo's security procedures [ECF No. 34-1] and that Plaintiff has alleged no facts showing that Wells Fargo's security procedures were commercially unreasonable [ECF No. 34 pp. 18–19]. Defendants also say that Plaintiff has alleged no facts showing that Wells Fargo failed to follow these security procedures [ECF No. 34 pp. 19–20]. Plaintiff counters that Defendants’ procedures allow for “as much, or as little, verification as [Wells Fargo] deems fit” [ECF No. 35 p. 16] and points to Plaintiff's allegations in the Complaint that “(1) he only makes wire transfers in person, (2) has never initiated a wire online, and (3) does no business with those individuals who received the fraudulent wires” [ECF No. 35 p. 16, see also ECF No. 33 ¶¶ 97, 106, 110].

Florida Statute § 607.204(1), which adopts Article 4A of the UCC, requires a “receiving bank” (in this case, Wells Fargo) to refund any “payment order that isn't verified.” Rodriguez v. Branch Banking & Tr. Co., 46 F.4th 1247, 1253 (11th Cir. 2022); see also Fla. Stat. § 670.204(1) Florida Statute § 607.202 then sets forth standards governing the commercial reasonableness of security procedures for the verification of wire transfers:

(2) If a bank and its customer have agreed that the authenticity of payment orders issued to the bank in the name of the customer as sender will be verified pursuant to a security procedure, a payment order received by the receiving bank is effective as the order of the customer, whether or not authorized, if the security procedure is a commercially reasonable method of providing security against unauthorized payment orders and the bank proves that it accepted the payment order in good faith and in compliance with the bank's obligations under the security procedure and any agreement or instruction of the customer, evidenced by a record, restricting acceptance of payment orders issued in the name of the customer. The bank is not required to follow an instruction that violates an agreement with the customer, evidenced by a record, or notice of which is not received at a time and in a manner affording the bank a reasonable opportunity to act on it before the payment order is accepted.

(3) The commercial reasonableness of a security procedure is a question of law to be determined by considering the wishes of the customer expressed to the bank; the circumstances of the customer known to the bank, including the size, type, and frequency of payment orders normally issued by the customer to the bank; alternative security procedures offered to the customer; and security procedures in general use by customers and receiving banks similarly situated. A security procedure is deemed to be commercially reasonable if:

(a) The security procedure was chosen by the customer after the bank offered, and the customer refused, a security procedure that was commercially reasonable for that customer; and

(b) The customer expressly agreed in a record to be bound by any payment order, whether or not authorized, issued in its name and accepted by the bank in compliance with the bank's obligations under the security procedure chosen by the customer.

Fla. Stat. § 670.202. Thus, under § 607.202, “[i]f (1) the bank and the customer agree on a security procedure, (2) the security procedure is ‘commercially reasonable,’ and (3) the bank can prove it followed the security procedures in good faith, then payment order is ‘effective as the order of the customer [i.e., verified], whether or not authorized.’ ” Rodriguez, 46 F.4th at 1253 (quoting Fla. Stat. § 670.202(2)).

At this stage, without expressing an opinion on the merits, Plaintiff has plausibly alleged that the Wells Fargo's security procedures were not “commercially reasonable,” and that Wells Fargo failed to follow “the security procedures in good faith.” Id. (quoting Fla. Stat. § 670.202(2)). Plaintiff alleges that, based on his specific circumstances, the security procedures used by Wells Fargo were not commercially reasonable [ECF No. 33 ¶¶ 96–99, 106, 110]. Plaintiff alleges that he “never initiated any wire transfers ‘on-line’ ” [ECF No. 33 ¶ 106]; that he “never previously made any wire transfers or payment orders” to the apparent fraudsters [ECF No. 33 ¶ 96]; that Wells Fargo “did not offer alternative security procedures to the Plaintiff” [ECF No. 33 ¶ 98]; and that Wells Fargo was aware of Plaintiff's circumstances [ECF No. 33 ¶ 97]. Plaintiff also alleges that Wells Fargo failed to follow its security procedures for “verifying that a payment order,” “obtaining Plaintiff's affirmative, explicit authorization,” “providing text and email notice,” and “detecting error” [ECF No. 33 ¶ 109]. Additionally, Defendants make no argument that Wells Fargo offered, or that Plaintiff refused, “a security procedure that was commercially reasonable.” See Fla. Stat. § 670.202(3)(a).

These allegations, accepted as true at this stage, plausibly state a claim for failure to maintain commercially reasonable security procedures (Count IV) and failure to comply with security procedures (Count V) [ECF No. 33 ¶¶ 93–113]. As Florida Statute § 670.202(3) instructs,

The commercial reasonableness of a security procedure is a question of law to be determined by considering the wishes of the customer expressed to the bank; the circumstances of the customer known to the bank, including the size, type, and frequency of payment orders normally issued by the customer to the bank; alternative security procedures offered to the customer; and security procedures in general use by customers and receiving banks similarly situated.

Fla. Stat. § 670.202(3) (emphasis added). Plaintiff has sufficiently alleged facts that Wells Fargo's security procedures are not commercially reasonable given Plaintiff's specific circumstances, known to Wells Fargo. Plaintiff's allegation that he never did online wire transfers [ECF No. 33 ¶¶ 97, 106, 110] is an allegation as to the “the size, type, and frequency of payment orders normally issued by the customer to the bank.” See Fla. Stat. § 670.202(3). Plaintiff also alleges the lack of alternative security procedures offered to Plaintiff [ECF No. 33 ¶ 98].

The Eleventh Circuit's decision in Rodriquez informs the Court's decision to permit this claim to proceed at this early juncture. See 46 F.4th 1247. There, the Eleventh Circuit declined to answer the “question of law” of whether a bank's “security procedures were commercially reasonable.” Id. at 1259. Rather, the court remanded the question to the district court, instructing the district court to “apply the factors laid out by statute to the [Plaintiffs] in this case—that is, whether the procedures were reasonable as applied to the [Plaintiffs]—not whether the security procedures are commercially reasonable in the abstract.” Id. (citation omitted). The Eleventh Circuit explained that it was “prudent” for the district court to make this determination “based on the complete record.” Id. Thus, the Court here concludes, on the allegations presented in this particular case, that any challenge to Plaintiff's theories in Counts IV and V is better reserved for resolution on a “complete record.” See id. Defendants’ Motion is denied as it pertains to Counts IV and V.

V. Count VI fails to state a claim for breach of fiduciary duty.

In Count VI, Plaintiff alleges that Wells Fargo “entered a banking relationship with Plaintiff, with whom it has established a confidential or fiduciary relationship” [ECF No. 33 ¶ 116]. Plaintiff further alleges that, “[a]s a customer of Wells Fargo, through his interactions with them, Plaintiff had developed a relationship of trust and confidence, believing Wells Fargo adequately maintained his funds and his account” and that “Plaintiff relied on the Defendant's expertise in handling fraudulent transfer claims with respect to its customers” [ECF No. ¶¶ 117–118]. Defendant argues that Plaintiff's claim is barred by the independent tort doctrine and contends that Florida law generally holds that banks do not have a fiduciary relationship with their customers [ECF No. 34 pp. 13–15]. Plaintiff responds that he pled “special circumstances” imposing a fiduciary duty upon Wells Fargo, namely, that as “a long-term customer of Wells Fargo,” he “placed his trust and confidence in the representations that Wells Fargo was properly investigating he [sic] fraudulent transfers, as well as seeking to cancel those transactions” [ECF No. 35 pp. 13–14 (quotation omitted)].

“To establish a fiduciary relationship, a party must allege some degree of dependency on one side and some degree of undertaking on the other side to advise, counsel, and protect the weaker party.” Watkins v. NCNB Nat. Bank of Fla., N.A., 622 So. 2d 1063, 1065 (Fla. Dist. Ct. App. 1993) (quotation omitted). “One may not unilaterally impose a fiduciary responsibility on another simply by reposing trust; absent some conscious acceptance of such duties, no fiduciary relationship is created.” Suzmar, LLC v. First Nat'l Bank of S. Miami, 388 So. 3d 852, 855 (Fla. Dist. Ct. App. 2023) (alteration adopted) (quotation omitted). Applying this principle to banks, “[a] bank and its customers generally deal at arm's-length as creditor and debtor, and a fiduciary relationship is not presumed.” Bldg. Educ. Corp. v. Ocean Bank, 982 So. 2d 37, 40–41 (Fla. Dist. Ct. App. 2008) (citation omitted). Rather, “a fiduciary relationship between a bank and a customer” arises only where “the bank knows or has reason to know of the customer's trust and confidence under circumstances exceeding an ordinary commercial transaction.” Cap. Bank v. MVB, Inc., 644 So. 2d 515, 521 (Fla. Dist. Ct. App. 1994) (citations omitted).

Under these principles of Florida law, both of Defendants’ arguments are correct. First, Plaintiff's claim is barred by the independent tort doctrine. As noted above, Plaintiff's relationship with Wells Fargo is merely the “customer relationship between a bank and its depositing customer” and, as Florida Courts have held, this relationship “is contractual.” MJZ Corp., 420 So. 2d at 397. Therefore, any claims arising from that relationship are not “independent of any breach of contract claim,” and the independent tort doctrine bars such claims. See Tiara Condo., 110 So. 3d at 408. Second, Plaintiff has not shown any circumstances creating a fiduciary relationship between Plaintiff and Wells Fargo. Plaintiff's allegations of “a relationship of trust and confidence” [ECF No. 33 ¶ 117] simply stem from the “ordinary commercial” relationship of Plaintiff depositing his money in a Wells Fargo bank account. See Cap. Bank v. MVB, Inc., 644 So. 2d at 521. Plaintiff has not alleged any relationship beyond that of an ordinary depositor.

Plaintiff's reasoning would have the exception swallow the rule. Every banking customer trusts the bank with their money. If simply placing money in a bank account constituted a special circumstance and relationship of trust that creates a fiduciary duty, then every bank would have a fiduciary relationship with its customers. Under Plaintiff's logic, rather than a special circumstance being necessary to create a fiduciary relationship between bank and customer, a mere ordinary depositing customer relationship would create that fiduciary relationship. This result would negate the default rule that a “bank owes no fiduciary responsibilities” to its depositing customers. See Cap. Bank v. MVB, Inc., 644 So. 2d at 518. Plaintiff's allegations, therefore, even taken as true, fail to state a claim for breach of fiduciary duty.

Thus, Count VI is dismissed with prejudice. Plaintiff has twice amended his pleading; he fails to advise what else he could add to overcome this clear legal hurdle; and the Court already warned Plaintiff that no additional repleading would be permitted [ECF Nos. 25, 32].

VI. Plaintiff's request for attorneys’ fees is stricken.

Finally, Plaintiff requests attorneys’ fees as to all claims, pointing to the prevailing party attorneys’ fee provisions in both the Deposit Agreement and the Online Access Agreement [ECF No. 33 pp. 9–12, 14, 16; ECF No. 35 p. 18]. Plaintiff asserts that all of the claims “arise from the same core facts and are inextricably intertwined,” justifying a request for fees on each count [ECF No. 35 pp. 18–19]. Defendant initially argues that “[t]here is no statute or contract providing for Plaintiff to recover fees on any of his claims” [ECF No. 34 p. 20], but after Plaintiff's response identifying relevant contractual provisions, Defendant argues instead that attorneys’ fees can be sought only with respect to the breach of contract claim in Count III, assuming the Court does not dismiss that claim on other grounds [ECF No. 38 pp. 9–10].

Because the Court dismisses Count III and the other claims arising under the Deposit Agreement (Counts I and VI), the Court strikes Plaintiff's request for attorneys’ fees. Plaintiff has pointed to no basis for awarding fees other than the Deposit Agreement and Online Access Agreement. With those claims gone, Plaintiff has provided no other basis for attorneys’ fees. See Hardt v. Reliance Standard Life Ins., 560 U.S. 242, 253, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010) (“Each litigant pays his own attorney's fees, win or lose, unless a statute or contract provides otherwise.” (citations omitted)); see also SE Prop. Holdings, LLC v. Welch, 65 F.4th 1335, 1350 (11th Cir. 2023) (“[T]he general rule under Florida law is that each party bears its own attorneys’ fees unless a contract or statute provides otherwise.” (quotation omitted)).

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendants’ Motion to Dismiss Plaintiff's Second Amended Complaint [ECF No. 34] is GRANTED IN PART and DENIED IN PART.

2. Counts I, II, III, and VI of Plaintiff's Second Amended Complaint [ECF No. 33] are DISMISSED WITH PREJUDICE.

3. Defendants’ Motion [ECF No. 34] is DENIED as to Counts IV and V of Plaintiff's Second Amended Complaint [ECF No. 33], which may proceed to discovery.

4. Plaintiff's requests for attorneys’ fees in the Second Amended Complaint are STRICKEN.

5. Defendant Wells Fargo shall answer the remaining counts in Plaintiff's Second Amended Complaint [ECF No. 33] on or before December 3, 2025.

6. In light of this Order, the Clerk shall TERMINATE Defendant Discover as a party to this suit.

DONE AND ORDERED in Fort Pierce, Florida, this 10th day of November 2025.

FOOTNOTES

2.   As the Court did in the Dismissal Order, the Court again acknowledges Defendants’ argument that Plaintiff's negligence claim (along with Plaintiff's unjust enrichment and breach of fiduciary duty claims, which the Court discusses below) are preempted by Article 4 of the Uniform Commercial Code [ECF No. 25 p. 12 n.6]. Ultimately, for the reasons set forth in this Order, the Court need not address the preemption issue to resolve the present Motion. Defendants may reraise their preemption arguments as necessary.

3.   As the Court held in the Dismissal Order, the wire transfers at issue in this case are not electronic funds transfers under Regulation E [ECF No. 25 pp. 5–8].

AILEEN M. CANNON, UNITED STATES DISTRICT JUDGE