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Grimm v. Washington Mutual Bank

July 22, 2008


The opinion of the court was delivered by: McVerry, J.


Presently pending before the Court for disposition is the MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT, with brief in support, filed by Defendant, Washington Mutual Bank ("WaMu") (Document Nos. 4 and 5, respectively) and the response and brief in opposition filed by Plaintiffs, Josephine Grimm and Lester Grimm (Document Nos. 7 and 8).

Plaintiffs allege that they were the victims of identity theft premised on certain unauthorized charges made on their WaMu credit cards, as well as the cards of thirteen other banks or credit card companies. See Amended Complaint, ¶¶ 7 -10. Plaintiffs allege that at least three unauthorized charges were made on their WaMu credit cards between October 17, 2005 and October 18, 2005, totaling $1,000.00.*fn1 Plaintiffs contend that WaMu created a false impression of security by, inter alia, promising that their WaMu account would be protected against unauthorized transactions and in the event that an unauthorized transaction would occur, the Grimms would not be held liable. However, according to Plaintiffs, WaMu failed to detect that the Grimms' account had been "raided," that fraudulent transactions had occurred and that WaMu continues to hold them liable for the unauthorized use of their credit cards.

After careful review of the filings, the Motion to Dismiss will be granted in part and denied in part.

Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of the Complaint. "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, ---U.S. ---, 127 S.Ct. 1955, 1965 (2007) (citing Papasan v. Allian, 478 U.S. 265, 286 (1986)).

To make certain that lower courts understood the scope of its holding, the Supreme Court in Twombly explicitly rejected its earlier decision in Conley v. Gibson, 355 U.S. 41, 47 (1957), which had held that "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 127 S.Ct. at 1969. Rather, the Court made clear that a plaintiff's complaint must go beyond mere legal conclusions and speculation to provide factual allegations sufficient to "nudge . . . their claims across the line from conceivable to plausible." Id. In Phillips, the Court of Appeals for the Third Circuit addressed in detail the modifications to the standard of review for motions filed pursuant Rule 12(b)(6). See Phillips v. County of Allegheny, 515 F.3d 224, 230-235 (3d Cir. 2008).

In April 2008, our court of appeals summarized its current application of Twombly and Phillips. See Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d 315 (3d Cir. 2008). The court noted that when it had decided Phillips, [a]lthough the exact parameters of the Twombly decision were not yet known, we read Twombly to mean that 'factual allegations must be enough to raise a right to relief above the speculative level. In other words, 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element.

Wilkerson, 522 F.3d 322 (citing Phillips, 515 F.3d at 234, quoting Twombly, 127 S.Ct. at 1965).

"After Twombly, it is no longer sufficient to allege mere elements of a cause of action; instead, 'a complaint must allege facts suggestive of [the proscribed] conduct.' " Phillips, 515 F.3d at 233 (quoting Twombly, 127 S.Ct. at 1969 n.8.) "This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234 (quoting Twombly, 127 S.Ct. at 1965).

However, nothing in Philips or Twombly has changed other pleading standards for a Rule 12(b)(6) motion to dismiss. That is, in Phillips the court of appealsnoted that the Supreme Court in Twombly did not impose a new heightened pleading requirement, but reaffirmed that Federal Rule of Civil Procedure 8 requires only a short and plain statement of the claim showing that the pleader is entitled to relief, not "detailed factual allegations." See Phillips, 515 F.3d at 231 (citing Twombly, 127 S.Ct. at 1964). Second, the Supreme Court did not abolish the Rule 12(b)6) requirement that "the facts alleged must be taken as true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, id., (citing Twombly, id. at 1964-65 and 1969 n.8.) Phillips also noted that while the Supreme Court did not address the previously established rule about drawing all reasonable inferences in favor of the non-moving party when considering a motion to dismiss, it concluded "we do not read [the Twombly] decision to undermine that principle." Id. at 231.


WaMu raises several arguments in support of its Motion to Dismiss, which will be will be addressed seriatim.

I. Gist of the Action Doctrine.*fn2

WaMu argues that the "gist of the action doctrine" bars Plaintiffs' claims for negligence (Count II), fraudulent misrepresentation (Count III), negligent misrepresentation (Count IV) and negligence per se (Count VIII) (" the tort claims").

The gist of the action doctrine bars tort claims which arise solely from a contract between the parties. Werwinski v. Ford Motor Co., 286 F.3d 661, 680 n. 8 (3d Cir. 2002) (citing Phico Insurance Co. v. Presbyterian Medical Services Corp., 663 A.2d 753, 757 (Pa. Super. 1995)). The doctrine is based on the notion that the "important difference between contract and tort actions is that the latter lie from the breach of duties imposed as a matter of social policy while the former lie for the breach of duties imposed by mutual consensus." Bohler-Uddeholm Am., Inc. v. Ellwood Group, Inc., 247 F.3d 79, 103-04 (3d Cir. 2001) (quoting Redevelopment Auth. of Cambria County v. International Ins. Co., 685 A.2d 581, 590 (Pa. Super. ...

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