United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE
Thomas Alston, pro se, filed suit against Defendants
Wells Fargo Bank, N.A. (“Wells Fargo”) and
Capital One, N.A. (“Capital One”), alleging that
Defendants charged him undisclosed fees on one occasion when
he withdrew cash from a Wells Fargo automated teller machine
(“ATM”). Against Capital One alone, he alleged he
was improperly charged a $2 fee on another occasion for
purportedly exceeding the $5000 monthly limit on cash
deposits. On the basis of these two incidents, he brought
five claims as a purported class action, including state law
breach of contract and tort claims, as well as a claim under
the Electronic Funds Transfer Act, 15 U.S.C. § 1693
et seq. While both Defendants moved to dismiss the
suit for failure to state a claim, Alston has moved for
summary judgment as to Wells Fargo only. Subsequently, Alston
and Capital One stipulated to Capital One’s dismissal
from the case.
reasons that follow, the Court will GRANT Wells Fargo’s
Motion to Dismiss, ECF No. 14, which the Court has converted
into a Cross Motion for Summary Judgment. It will then DENY
Alston’s Motion for Summary Judgment, ECF No. 21 and
ENTER FINAL JUDGMENT in favor of Wells Fargo and against
Alston as to all remaining claims.
alleges in his Amended Complaint that in December 2014, he
withdrew $200 from a Wells Fargo ATM in Virginia, using his
Capital One debit card. Am. Compl. ¶ 4, ECF No. 6. He
was charged a $7 fee for the transaction but submits that
“[t]he ATM screen indicated that only $4 or $5 would be
the total amount charged for the transaction.”
Id. ¶¶ 5-6. He further alleges that the $7
charge included an overcharge by “Capital One and/or
Wells Fargo of $2 or $3, ” such that one Defendant or
both Defendants charged all or a portion of the $2 or $3
overcharge. Id. ¶¶ 9, 17. Alston admits
that his checking account agreement permitted Capital One to
assess fees during transactions at a non-Capital One ATM,
id. ¶¶ 39-40, but he denies that other
charges would apply given that he did not make a balance
inquiry during his transaction, which would result in an
additional fee. Id. ¶ 13.
Amended Complaint goes on to explain that Alston spoke with a
Wells Fargo representative who was “unhelpful and
suggested he call Capital One.” Id. ¶ 11.
He then contacted several Capital One representatives, two of
whom told him that he was charged $4 for the transaction,
while another one said Capital One only charged him $2.
Id. ¶¶ 12-16. One of the representatives
who said he was charged $4 mentioned that Capital One had
received complaints about “illegal charges for balance
inquiries.” Id. ¶ 12. Another Capital One
representative said that “the extra charge(s) may have
come from Wells Fargo.” Id. ¶ 16.
Capital One only, Alston alleges that in a separate incident
in June 2015, he was incorrectly charged a $2 fee for going
over the $5000 cash deposit limit by $2000. He maintains that
he did not deposit $7000 in cash in June 2015. Id.
basis of these two incidents, Alston sought to bring the suit
as a class action with two distinct classes: an ATM Fee Class
related to the first incident, and a Cash Deposit Fee Class
related to the second incident. He alleged five counts as
follows: (1) Count 1: Violation of Electronic Funds Transfer
Act (“EFTA”), 15 U.S.C. § 1693 (ATM Fee
Class); (2) Count 2: Breach of Contract (ATM Fee Class); (3)
Count 3: Unjust Enrichment (ATM Fee Class); (4) Count 4:
Breach of Contract (Cash Deposit Fee Class); (5) Count 5:
Conversion (both classes). Alston only brings Counts 1, 3,
and 5 against Wells Fargo.
filed suit in the Circuit Court for Prince George’s
County on October 6, 2015, alleging only state law claims.
After Wells Fargo filed a Motion to Dismiss in that court,
relying on the EFTA, Alston amended his complaint to add a
violation of the EFTA as Count 1. In consequence, on January
4, 2016 Wells Fargo, with permission from Capital One,
removed the suit to this Court, and, on that same day, filed
a Motion to Dismiss the Amended Complaint, which is currently
before the Court. ECF No. 14. In Alston’s response in
opposition, he also moved for summary judgment. ECF No. 21.
January 29, 2016, Capital One likewise moved to dismiss the
suit for failure to state a claim. ECF No. 25. Attached as an
exhibit to the motion was a copy of a December 2014 account
statement for Alston,  showing the December 24, 2014 ATM
withdrawal at issue. See ECF No. 25-3, Ex. 2. The
statement shows that a withdrawal was made from an ATM in
Arlington, Virginia in the amount of $203 (presumably the
$200 Alston withdrew, plus a $3 fee charged by Wells Fargo),
with an additional $4 in fees charged by Capital One. See
id. Alston opposed the motion to dismiss and sought
leave to amend his complaint. ECF No. 28.
24, 2016, while these motions were pending, Alston and
Capital One entered into a joint stipulation that dismissed
all claims against Capital One with prejudice, pursuant to
Federal Rule of Civil Procedure 41(a). ECF No. 31. Since
Capital One’s Motion to Dismiss is now moot,
Alston’s request for leave to amend his complaint will
Court now takes up the remaining claims against Wells Fargo
addressed in their Motion to Dismiss, as well as
Alston’s Motion for Summary Judgment.
Fargo moves to dismiss the suit pursuant to Federal Rule of
Civil Procedure 12(b)(6), but does, in part, rely on the
account statement provided by Capital One. See ECF
No. 27 at 5. Where a motion for dismissal pursuant to Rule
12(b)(6) relies on matters outside the pleadings, the Court
treats it as a motion for summary judgment. Fed.R.Civ.P.
12(d) (“If, on a motion under Rule 12(b)(6) . . .
matters outside the pleadings are ...