488 F.Supp.3d 611
S.D. Ohio2020Background
- Plaintiffs Wiggins (Ohio), Portillo (Texas), and Mull (Washington) sued Bank of America, N.A. (BANA) and Bank of America Corporation (BAC) over $35 overdraft fees assessed after very small electronic transactions (¢01–¢04) and small deposits.
- Depository contract (Deposit Agreement & Schedule of Fees) disclaimed any obligation to pay overdrafts and listed a $35 overdraft fee; Plaintiffs allege the bank used unfair posting/overdraft practices and later amended the agreement to exclude $1.00-or-less transactions.
- Plaintiffs asserted a putative nationwide Rule 23 class and pleaded four state-law claims: breach of the covenant of good faith and fair dealing, unconscionability, conversion, and unjust enrichment; they sought declaratory relief, restitution, and damages.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(2) (personal jurisdiction) and 12(b)(6) (failure to state a claim) and sought oral argument (denied).
- Court held: oral argument denied; dismissal for lack of personal jurisdiction over the non-Ohio named plaintiffs (Portillo and Mull) granted; dismissal as to BAC for jurisdictional/grouping grounds denied; class allegations not stricken (court concluded Bristol-Myers doesn’t bar Rule 23 nationwide class claims at pleading stage).
- On the merits: NBA preemption rejected; breach-of-covenant claim (as a standalone tort) dismissed; unconscionability claim survives (at least for declaratory relief); conversion claim dismissed for failure to allege identifiable funds; unjust enrichment dismissed without prejudice (may be repled in the alternative).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction over BAC (grouped with BANA) | Complaint collectively alleges "Bank of America" does substantial business in Ohio; grouping OK for pleading. | BAC not individually alleged to have acted in Ohio; grouping insufficient. | Denied dismissal — grouping in complaint not fatal; personal jurisdiction over BAC not dismissed at pleading stage. |
| Personal jurisdiction over nonresident named plaintiffs (Portillo, Mull) | A class action need only have one named plaintiff satisfy jurisdiction; pendent personal jurisdiction or efficiency justify keeping their claims. | Bristol-Myers requires a connection between forum and each named plaintiff’s claim; no Ohio contacts alleged for Portillo or Mull. | Granted dismissal — no prima facie Ohio contacts; Bristol-Myers bars exercising specific jurisdiction over those named nonresidents. |
| Personal jurisdiction over putative nonresident class members | A single Ohio class representative suffices for nationwide Rule 23 claims; unnamed class members are not parties for jurisdictional purposes. | Bristol-Myers should bar assertion of out-of-state class members' claims. | Denied motion to strike class allegations — court follows line of authority holding Bristol-Myers does not bar Rule 23 nationwide class claims at pleading stage. |
| National Bank Act (NBA) preemption of state-law claims | Plaintiffs’ claims challenge bad-faith implementation of overdraft practices, not banks’ authority to set fees; state law of general application should apply. | NBA/OCC regulation grants national banks authority and discretion to set fees; state-law claims interfere and are preempted. | Denied dismissal — court finds no field or conflict preemption; state contract/tort claims of general application survive. |
| Breach of covenant of good faith and fair dealing (standalone) | Covenant breached by bank’s overdraft practices since 2003. | Ohio recognizes covenant only as part of a contract claim, not a freestanding cause of action. | Dismissed — free‑standing covenant claim fails because no breach-of-contract claim was pleaded. |
| Unconscionability (affirmative claim) | Overdraft terms are adhesive, hidden, and yield fees massively disproportionate to overdrafts; seek declaratory relief. | Unconscionability is a defense, not a basis for damages. | Survives (at least for declaratory relief) — plaintiff plausibly pleaded procedural and substantive unconscionability; damages-only unconscionability claim would fail. |
| Conversion for assessed fees | Bank wrongfully converted identifiable customer funds (overdraft fees). | Conversion requires specifically identifiable/sequestered money, not mere debt. | Dismissed — complaint fails to plead funds that are specifically identifiable under Ohio law. |
| Unjust enrichment | Bank retained wrongful benefits; plead in the alternative if contract unenforceable. | Express Deposit Agreement governs the relationship; unjust enrichment cannot lie where express contract applies. | Dismissed without prejudice — may be repled in the alternative if Plaintiffs dispute enforceability of the contract. |
Key Cases Cited
- Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (U.S. 2017) (specific-jurisdiction requires affiliation between forum and each plaintiff's claim)
- Daimler AG v. Bauman, 571 U.S. 117 (U.S. 2014) (limits on general personal jurisdiction)
- Int'l Shoe Co. v. Washington, 326 U.S. 310 (U.S. 1945) (minimum contacts and notions of fair play for personal jurisdiction)
- Monroe Retail, Inc. v. RBS Citizens, N.A., 589 F.3d 274 (6th Cir. 2009) (NBA/OCC preemption and scope of banks' fee-setting authority)
- Watters v. Wachovia Bank, N.A., 550 U.S. 1 (U.S. 2007) (national banks and preemption framework)
- Cipollone v. Liggett Group, Inc., 505 U.S. 504 (U.S. 1992) (three-category preemption analysis)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (limits on conclusory allegations in pleading)
- Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (U.S. 1984) (choice-of-law should not distort jurisdictional inquiry)