Namer v. Bank of America, N.A.
3:16-cv-03024
S.D. Cal.Mar 30, 2017Background
- Plaintiff Robert Namer was an alleged officer/director and authorized signer for multiple corporate plaintiffs and claims he was removed as an authorized signer on various Bank of America business accounts in early September 2013 after a disputed corporate takeover by R’Nelle Lahlou.
- On September 9, 2013 Namer alleges a Bank VP (Jeff Schwartz) orally “assured” him his signing authority would not be removed and accounts would be frozen; bank correspondence later told him the bank would follow written instructions of authorized signers absent a court order.
- Lahlou was listed on the bank signature cards as an authorized signer; the bank followed those written instructions and removed Namer’s authority on September 4, 2013 according to the Deposit Agreement terms.
- Namer sued Lahlou in state and federal courts and settled; he later sued Bank of America in Louisiana (dismissed for lack of personal jurisdiction) and then filed the present action in California asserting breach of contract, negligence, aiding and abetting breach of fiduciary duty, aiding and abetting conversion, and breach of fiduciary duty.
- Bank moved to dismiss under Rule 12(b)(6). The court dismissed negligence and aiding-and-abetting conversion with prejudice (time-barred); dismissed breach of contract, aiding-and-abetting breach of fiduciary duty, and breach of fiduciary duty with leave to amend (14 days).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract — did bank violate the Deposit Agreement by removing Namer/failing to freeze accounts? | Bank breached the signature-card Deposit Agreement by following Lahlou (and her father) and not honoring alleged oral assurances to freeze/reinstate Namer. | The signature cards and Deposit Agreement show Lahlou was an authorized signer and the bank lawfully followed written instructions; no contract term required freezing or reinstating a removed signer. | Dismissed with leave to amend — plaintiff failed to plead a contractual duty to freeze/reinstate. |
| Negligence — timeliness and merits | Bank’s conduct impaired Namer’s business; negligence claim accrues Sept 6, 2013. | Claim is barred by the two-year statute of limitations; prior Louisiana case does not preserve relation-back here. | Dismissed with prejudice (time-barred). |
| Aiding and abetting breach of fiduciary duty — did bank have actual knowledge and substantially assist? | Bank knowingly assisted Lahlou’s wrongful takeover and had actual knowledge of the fiduciary breach; oral assurances show complicity. | Bank merely followed instructions of an authorized signer in the ordinary course; there are only conclusory allegations of knowledge and assistance. | Dismissed with leave to amend — allegations do not plausibly show actual knowledge or substantial assistance. |
| Aiding and abetting conversion — timeliness and culpability | Bank aided conversion by allowing withdrawals after the takeover. | Claim is time-barred and lacks allegations that bank intentionally participated with knowledge of the object to be obtained. | Dismissed with prejudice (time-barred and insufficient merits). |
| Breach of fiduciary duty — did bank assume fiduciary obligations via alleged assurances? | Oral assurances from a bank officer created a fiduciary relationship and induced reliance. | Bank-depositor relationship is contractual, not fiduciary; alleged oral assurances are contradicted by later written correspondence. | Dismissed with leave to amend — allegations insufficient to create a fiduciary duty. |
Key Cases Cited
- United States v. Redwood City, 640 F.2d 963 (9th Cir.) (standard for dismissals under Rule 12(b)(6))
- Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir.) (dismissal where complaint lacks cognizable legal theory)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (conclusory allegations insufficient under Rule 8)
- Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542 (9th Cir.) (documents attached to or properly considered on the face of the complaint)
- In re Syntex Corp. Sec. Litig., 95 F.3d 922 (9th Cir.) (conclusory allegations and unwarranted inferences insufficient)
- Das v. Bank of Am., N.A., 186 Cal.App.4th 727 (Cal. Ct. App.) (bank-depositor relationship is contractual; signature card governs)
- Chazen v. Centennial Bank, 61 Cal.App.4th 532 (Cal. Ct. App.) (bank entitled to assume authorized signers act legitimately)
- Casey v. U.S. Bank Nat'l Ass'n, 127 Cal.App.4th 1138 (Cal. Ct. App.) (aiding-and-abetting liability requires actual knowledge of the specific primary wrong)
- In re First Alliance Mort. Co., 471 F.3d 977 (9th Cir.) (California aiding-and-abetting standard requires actual knowledge)
- Pierce v. Lyman, 1 Cal.App.4th 1093 (Cal. Ct. App.) (elements of breach of fiduciary duty claim)