Inviertal Financial Managers, S.A. v. Bank of America, N.A. , 605 F. App'x 820 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10952
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-21127-MGC
ARBITRAJES FINANCIEROS, S.A.,
a Venezuelan corporation,
Plaintiff-Appellant,
versus
BANK OF AMERICA, N.A.,
a national banking association,
ROSEMONT FINANCE CORPORATION,
a dissolved Florida corporation,
Defendants-Appellees.
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No. 14-11167
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-21367-MGC
INVIERTAL FINANCIAL MANAGERS, S.A.,
a Panamanian corporation,
Plaintiff-Appellant,
versus
BANK OF AMERICA, N.A.,
a national banking association,
Defendant-Appellee,
ROSEMONT FINANCE CORPORATION,
a dissolved Florida corporation,
Defendant.
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Appeals from the United States District Court
for the Southern District of Florida
________________________
(March 26, 2015)
Before MARTIN, JULIE CARNES and FAY, Circuit Judges.
PER CURIAM:
Arbitrajes Financieros, S.A, and Inviertal Financial Managers, S.A., appeal
the district court’s dismissal of their complaints seeking damages against Bank of
America, N.A. (BANA). After careful consideration of the parties’ briefs, we
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affirm the district court’s order dismissing appellants’ negligence and Florida
Uniform Commercial Code claims because appellants have not established that
they had a fiduciary relationship with BANA. We also affirm the district court’s
dismissal of the aiding-and-abetting claims, because appellants do not allege facts
which plausibly suggest that BANA had actual knowledge of Rosemont’s breach
of fiduciary duty.
I. Background
Appellants are foreign bond traders that specialize in the sale of Venezuelan
Bolivar bonds, converting the proceeds into United States currency. Under state
and federal guidelines, certain licenses and registrations are required to hold U.S.
bank accounts. Without U.S. accounts, foreign companies like appellants must
obtain the assistance of a licensed and registered fund transmitter to conduct their
business. To that end, appellants entered into agreements with Rosemont Finance
Corporation, a money transmission company. Rosemont represented to appellants
that it had an ongoing relationship with BANA under which it had created accounts
for other bond trading companies. Rosemont opened BANA bank accounts on
behalf of Arbitrajes and Inviertal, in each case signing a “standard deposit
agreement” that set forth the terms between Rosemont (the only named account
holder) and BANA.
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In March 2009, the United States Government seized both accounts as part
of a money-laundering investigation. 1 Appellants entered into settlements with the
Department of Justice, by which they agreed to forfeit a portion of funds that were
held in the BANA accounts. This was because neither appellants nor Rosemont
had the proper licenses or registration to hold the accounts.
In virtually identical actions, appellants sued BANA and Rosemont to
recover their forfeited assets.2 Appellants seek to hold BANA liable for
Rosemont’s fraudulent actions, asserting claims for negligence, violation of the
UCC, and aiding and abetting Rosemont’s breach of fiduciary duty. After
permitting both appellants to amend their complaints, the district court granted
BANA’s motions to dismiss with prejudice because appellants failed as a matter of
law to state any claim for relief against BANA. Inviertal filed a Motion to Alter
Judgment or, in the Alternative, for Leave to File Second Amended Complaint,
which the district court denied as futile. Appellants timely appealed.
II. Negligence Claims
Appellants first challenge the district court’s dismissal of their negligence
claims. To succeed, appellants must plead facts sufficient to establish that (1)
BANA owed them a duty of care; (2) BANA breached that duty; (3) the breach
caused their injury; and (4) they suffered damages. See Miles v. Naval Aviation
1
Rosemont’s President later pleaded guilty to money laundering.
2
Appellants allege diversity jurisdiction, and Florida law governs.
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Museum Found., 289 F.3d 715, 722 (11th Cir. 2002). Appellants claimed that
BANA’s duty of care required it to “verify that all licensees and registrations were
up to date.” Under Florida law, a bank does not have a fiduciary relationship with
its standard deposit account customers, but instead owes only a duty of ordinary
care in arms-length transactions. See First Nat’l Bank and Trust Co. of the
Treasurer Coast v. Pack, 789 So. 2d 411, 414 (Fla. 4th DCA 2001); Maxwell v.
First United Bank, 782 So. 2d 931, 934 (Fla. 4th DCA 2001). This ordinary duty
does not require BANA to act for the benefit or protection of appellants, or to
disclose facts that appellants could have discovered through their own diligence.
See Maxwell, 782 So. 2d at 934. Thus, under the duty of ordinary care, BANA
would not be required to verify Rosemont’s licenses and registration.
Appellants insist they had a fiduciary relationship with BANA, which
required BANA to satisfy a heightened duty of care. Fiduciary relationships can
be created expressly or impliedly under Florida law. Capital Bank v. MVB, Inc.,
644 So. 2d 515, 518 (Fla. 3d DCA 1994). Implied fiduciary relationships can arise
“when ‘confidence is reposed by one party and a trust accepted by the other.’” Id.
(quoting Dale v. Jennings, 90 So. 175, 179 (Fla. 1925)). In considering whether a
fiduciary relationship exists, courts may also consider whether the bank “1) takes
on extra services for a customer, 2) receives any greater economic benefit than
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from a typical transaction, or 3) exercises extensive control.” Capital Bank, 644
So. 2d at 519.
Appellants do not claim to have an express fiduciary relationship with
BANA. Indeed, the account agreements explicitly disclaim such a relationship:
“[O]ur deposit relationship with you is that of debtor and creditor. This Agreement
and the deposit relationship do not create a fiduciary, quasi-fiduciary or special
relationship between us.”
Neither did appellants adequately plead facts that show an implied
relationship. To support their claim that extra services were provided, appellants
point to specialized technology that BANA provided to allow appellants to make
wire transfers more quickly than other customers. Yet the case appellants rely
upon to support the idea that BANA took on “extra services” seems to require
services that transform the relationship to “exceed [the role] of a lender,” for
example by offering advice or directly orchestrating non-banking transactions.
Capital Bank, 644 So. 2d at 520. BANA’s specialized technology does not reach
this threshold.
To support their claim that BANA received a “greater economic benefit”
that created a fiduciary relationship, appellants argue that BANA collected extra
fees by retaining the interest on the account deposits instead of distributing it to
appellants. However, during the time these account were on deposit, federal law
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prohibited BANA from paying interest on appellants’ accounts. See 12 C.F.R. §
217.3 (“Regulation Q”) (repealed July 21, 2011). Thus, the “extra” fees appellants
allege BANA received were in fact mandated by law.
Though appellants allege that they placed their trust in BANA, they point to
no facts that show BANA, in turn, accepted appellants’ confidence and trust.
Appellants highlight certain conversations between BANA and Rosemont about
the accounts, but they point to no conversations sufficient to create a fiduciary
relationship between appellants and BANA. Based on this lack of a fiduciary
relationship with BANA, the district court rightly rejected appellants’ negligence
claims.
III. UCC Claims
Count II of appellants’ complaints alleges that BANA violated Article 4 of
Florida’s Uniform Commercial Code by not acting in good faith and exercising
ordinary care with respect to the item it handles. Fla. Stat. § 674.103(1). Their
UCC claims rely on the idea that BANA’s duty of “ordinary care” encompasses an
obligation to make sure that Rosemont had the proper licenses and registrations
needed to serve as a registered fund transmitter for appellants. However, Florida
does not impose such a duty on banks for their non-fiduciary, ordinary customer
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transactions. 3 See Maxwell, 782 So. 2d at 934. Appellants’ UCC claims were
therefore properly dismissed as well.
IV. Aider and Abettor Liability
Under Florida law, appellants must establish four elements to succeed on
their claim that BANA aided and abetted Rosemont’s breach of fiduciary duty: (1)
Rosemont owed a fiduciary duty to appellants; (2) which Rosemont breached; (3)
BANA knew about Rosemont’s breach; and (4) it substantially assisted with
Rosemont’s breach. See In re Caribbean K Line, Ltd., 288 B.R. 908, 919 (S.D.
Fla. 2002); Ft. Myers Dev. Corp. v. J.W. McWilliams Co., 122 So. 264, 268 (Fla.
1929). The district court dismissed appellants’ claims because they could not
establish that BANA knew of any alleged breach, much less assisted with it.
Because each of these elements is required, and the failure of any one of
them is decisive, we address only the third element requiring BANA’s knowledge
of Rosemont’s breach. Appellants allege only that BANA “had knowledge” of
Rosemont’s breaches of fiduciary duty—including Rosemont’s representation to
appellants that it had the proper licenses and registrations; Rosemont’s telling
appellants they did not need to register or get licenses; and Rosemont’s failing to
inform appellants that such licenses and registrations were required. In support of
this allegation, appellants allege that Rosemont “advised [BANA] that it
3
We need not reach the question of whether appellants were customers of BANA, or whether
BANA would have owed appellants this duty of care in the context of a fiduciary relationship.
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committed the aforementioned acts prior to . . . open[ing] the [appellants’]
[a]ccount[s].” At the same time, however, appellants’ complaints allege that
Rosemont’s former president “advised [BANA] that Rosemont was going to obtain
the appropriate money transmission license and registration . . . .” Of course
BANA could not have known about the breach if Rosemont hid its fraud by saying
it would get the registrations and licenses. Similar to the facts addressed by this
court in Lawrence v. Bank of America, N.A., 455 Fed. App’x 904, 907 (11th Cir.
2012) (per curiam), appellants point to no other facts showing that BANA had
actual knowledge of Rosemont’s actions. Because appellants failed to sufficiently
allege BANA had actual knowledge of Rosemont’s breach, the district court
properly dismissed their aiding and abetting claims as well.
AFFIRMED.
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