Mitchell et al v. Wells Fargo Bank et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support of Motion to Dismiss Second Amended Complaint under Rule 12

D. UtahNovember 23, 2016

David H. Fry (pro hac vice) Erin J. Cox (pro hac vice) Eric P. Tuttle (pro hac vice) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, California 90071 Telephone: (213) 683-9100 James S. Jardine (1647) Elaina M. Maragakis (7929) Michael D. Mayfield (8237) RAY QUINNEY & NEBEKER P.C. 36 South State Street, Suite 1400 P.O. Box 45385 Salt Lake City, Utah 84145-0385 Telephone: (801) 532-1500 Attorneys for Defendants Wells Fargo Bank, N.A. and Wells Fargo & Co. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION Lawrence J. Mitchell, Kay Mitchell, Matthew C. Bishop, Tracy Kilgore, Jennifer K. Zeleny, Joseph W. Steele V, Scott Westin, Bruce Bird, Nathan Ornellas, Anu Sood, Brent Miller, Nicholas Beach, Alex Inskeep, Loretta Grady, Richard Fountain, Matthew Gragg, Akoya Lawani, Sharon Williams, Ken Gregory, Sbeen Ajmal, David Self, Edward Dowdy, April Thomas, Don Black, Reza Kamali, Anthony Baquero, Carina Rhea, Shanell Golden, Kim Weston, Adam Brandt, Jacci Brandt, Jennifer King, Ralph McCoy, Aaron Hands, Ayana Smith, Lisa Stern, Mbegane Diouf, Doug Waters, Candyce Ravenell, Paul Fos, Patricia Burkhalter, Blake Knight, Cameron Casey, Jeffery Taylor, Robert Moyer, Marcia Cameron, Gloria Pledger, Charles Jones, Aaron Brodie, Dominique Evans, Richard Farr, Kevin Saliva, Harold Beard, Travis Ashby, Andrew Gorayeb, Scott Mugrage, Edwin Zorilla, Curtis Dowdle, Edward Klann, Steven Stetzel, Glenn Gilleshammer, Wenoka Thompson, Maryann Aldous, Jennifer Porter, Robin Quigg, Tamar Hodges, Barbara Shadoan, Austin Law, Jennifer Ellsworth, Michelle Sterling, Denise Poe, Jamal Dean, Brandon Westman, Concepcion Powell, Adrian Thompson, Eric Talaska, Zachary MOTION AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UNDER RULE 12(b)(6) OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT UNDER RULE 12(e) Case No. 2:16-cv-00966 Judge Clark Waddoups Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 1 of 40 i Christensen, Erica Jones, Stephen Hope, Nedelka Martinsen et al and unknown Plaintiffs 1-1,000,000, Plaintiffs, v. Wells Fargo Bank, National Association, a National Banking Association, and Wells Fargo & Company, a Delaware Corporation, and Does 1-5,300, Defendants. Defendants Wells Fargo Bank, N.A. (“WF Bank”) and Wells Fargo & Company (“WF Co.” and, together with WF Bank, “Wells Fargo”) hereby move this Court to dismiss this action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e), and hereby submit this Memorandum in Support of their Motion. Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 2 of 40 ii TABLE OF CONTENTS PRECISE RELIEF SOUGHT AND SPECIFIC GROUNDS FOR RELIEF......................... iv STATEMENT OF FACTS ........................................................................................................ viii ARGUMENT ................................................................................................................................. 1 I. Legal Standard ........................................................................................................ 1 II. The First Claim, However Denominated, Fails ...................................................... 1 III. The Stored Communications Act Does Not Apply Here (Second Claim).............. 2 IV. Plaintiffs Have Not Alleged a Cognizable Invasion of Privacy (Third Claim) ..................................................................................................................... 7 V. Plaintiffs Cannot Enforce the Gramm-Leach-Bliley Act (Fourth Claim) ............ 10 VI. Plaintiffs Fail to Allege Their Own Performance under Their Contracts with Wells Fargo, or the Necessary Specifics of Those Contracts (Fifth and Sixth Claims) .................................................................................................. 11 VII. Wells Fargo is Not a Consumer Reporting Agency (Seventh and Eighth Claims) .................................................................................................................. 11 VIII. The Declaratory Judgment Claim Falls with the Contract Claims (Ninth Claim) ................................................................................................................... 13 IX. Wells Fargo Cannot Convert Information or Funds on Deposit (Tenth Claim) ................................................................................................................... 13 X. Plaintiffs Have Not Pleaded Fraud with Sufficient Particularity (Eleventh Claim) ................................................................................................................... 16 XI. Plaintiffs Have Not Properly Pleaded Unjust Enrichment (Twelfth Claim)......... 17 XII. The Federal Anti-Tying Statute Does Not Apply (Thirteenth Claim) .................. 17 XIII. Plaintiffs Do Not Allege a RICO Enterprise Distinct from Defendants or Plead Predicate Acts with Particularity (Fourteenth Claim) ................................. 20 XIV. There Is No Private Right of Action for E-mail Fraud (Fifteenth Claim) ............ 23 XV. Injunctive Relief Is Not a Standalone Claim (Sixteenth Claim) ........................... 23 Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 3 of 40 iii XVI. Plaintiffs Fail to Plead Infliction of Emotional Distress (Seventeenth Claim) ................................................................................................................... 23 XVII. The Complaint Contains No Allegations Concerning the Vast Majority of Plaintiffs ................................................................................................................ 25 CONCLUSION ........................................................................................................................... 25 Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 4 of 40 iv PRECISE RELIEF SOUGHT AND SPECIFIC GROUNDS FOR RELIEF Plaintiffs’ Second Amended Complaint fails as a matter of law: Plaintiffs’ claims are based on statutes for which there is no private right of action or that do not apply to the conduct alleged, and Plaintiffs fail to meet the basic pleading requirements of the claims alleged under Utah common law. Having apparently become aware of certain settlements with federal regulators and the City of Los Angeles, as well as Congressional interest in Wells Fargo, Plaintiffs seek to join the fray. But, notwithstanding that this is Plaintiffs’ third complaint in this action, Plaintiffs have failed to satisfy basic pleading requirements and have chosen to assert claims that simply do not fit the facts alleged. Wells Fargo therefore seeks an order dismissing all 17 of Plaintiffs’ claims for failure to state a claim upon which relief can be granted, or in the alternative, an order for a more definite statement requiring Plaintiffs to identify which claims apply to which Plaintiffs and to make specific factual allegations for each Plaintiff sufficient to support each claim alleged on behalf of that Plaintiff.1 1 Wells Fargo has simultaneously moved to compel most Plaintiffs to arbitrate their claims and to stay litigation on the merits—including litigation of this motion—pending resolution of all arbitrability issues. The Court should address the concurrently filed Motion to Compel Arbitration before considering this Motion to Dismiss. See Kenney v. Hallmark Cards, Inc., 2009 WL 102682, at *1 (D. Kan. Jan. 7, 2009) (unpublished) (“If the claims are arbitrable, the court must stay the proceeding. Thus, the court will consider defendant’s motion to compel arbitration before addressing the merits of plaintiff’s claims, not simply as an alternative in the event the court does not dismiss plaintiff's claims.” (internal citations omitted)). Moreover, as explained in the Motion to Compel Arbitration and Motion to Stay Litigation, certain Plaintiffs to date have failed to provide information sufficient to enable Wells Fargo to identify the customer, accounts, and agreements at issue. Wells Fargo therefore is not yet in a position to move to compel those Plaintiffs to arbitrate their claims, but has requested leave to take limited discovery and anticipates moving to compel arbitration as soon as it has the necessary information. For the reasons stated in the Motion to Stay Litigation, the Court should defer briefing and decision on this Motion to Dismiss pending resolution of all arbitrability issues as to all Plaintiffs. Wells Fargo files this Motion to Dismiss in order to preserve its rights in the event that arbitration ultimately is denied with prejudice as to any Plaintiff. Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 5 of 40 v The grounds for dismissal, or in the alternative a more definite statement, are as follows: Claim 1 (Utah Protection of Personal Information Act, Unfair Competition Act, Deceptive Trade Practices Act and Federal Protection of nonpublic information): The claim as alleged is manifestly unclear, as it apparently relies on several different statutes. In any event, none of those statutes give rise to a claim. There is no private right of action for two of the cited statutes (the Utah Protection of Personal Information Act and the Gramm-Leach-Bliley Act), and the third statute (the Utah Unfair Competition Act) expressly excludes banks (like WF Bank) and bank holding companies (like WF Co.) from its ambit. The claim must be dismissed. Claim 2 (Stored Communications Act, 18 U.S.C. § 2702): This statute does not apply to Wells Fargo, which is neither a provider of electronic communication services to the public nor a provider of remote computing services to the public. Nor have Plaintiffs alleged facts plausibly showing that Wells Fargo divulged the contents of any of their communications within the meaning of the statute. The claim must be dismissed. Claim 3 (Invasion of Privacy): Plaintiffs appear to invoke three of the four forms of the privacy tort recognized in Utah, but none applies to these allegations. Intrusion into seclusion requires prying into someone else’s information, and does not apply to a defendant alleged to have misused information in its own records that was voluntarily provided by plaintiffs, as alleged here. Misappropriation of name requires that the plaintiff’s name be famous or notorious, or otherwise have value beyond those of the general public, which Plaintiffs do not allege. And public disclosure of private facts requires Plaintiffs’ private information to have been disseminated to the public at large, which Plaintiffs also do not allege. The claim must be dismissed. Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 6 of 40 vi Claim 4 (Gramm-Leach-Bliley Act, 15 U.S.C § 6801 et seq.): There is no private right of action to enforce this federal statute. The claim must be dismissed. Claims 5 & 6 (Breach of Contract and Breach of Implied Contract): Plaintiffs do not allege that they have performed their obligations under their contracts with WF Bank, a required element of a breach of contract action. Nor do they sufficiently allege the specific provisions of the contracts alleged to have been breached. These claims must be dismissed. Claims 7 & 8 (Intentional and Negligent Violation of the Fair Credit Reporting Act): Plaintiffs’ theory is that Wells Fargo is a consumer reporting agency, and violated provisions of the act applicable to such agencies. That theory is unsupported by Plaintiffs’ allegations and has twice been rejected as “frivolous” by the Seventh Circuit. These claims must be dismissed. Claim 9 (Declaratory Judgment): This claim is derivative of the breach of contract claims. The claim must be dismissed for the same reasons. Claim 10 (Conversion): Plaintiffs appear to allege both conversion of their private information and conversion of funds on deposit with WF Bank. The former theory fails because personal identifying information is the kind of intangible thing that is not subject to conversion under Utah law. The latter theory fails because it is black-letter law that money deposited with a bank becomes the property of the bank, with the depositor having only a claim as creditor against the bank. A depositor may have a claim for repayment or for breach of contract against the bank, but a bank cannot be sued in tort for converting its own property. The claim must be dismissed. Claim 11 (Fraud): Plaintiffs have failed to plead fraud with the particularity required by Rule 9(b). Plaintiffs fail to allege the time, place, and contents of the alleged false Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 7 of 40 vii representations, the identity of the party making the false statements, or the consequences thereof, as required. The claim must be dismissed. Claim 12 (Unjust Enrichment): Plaintiffs cannot maintain an action for unjust enrichment when an express contract exists between the parties, as Plaintiffs allege. The claim must be dismissed. Claim 13 (Anti-Tying Provisions, 12 U.S.C. § 1972(1)): This federal statute does not apply to the conduct alleged for three reasons. First, Plaintiffs allege that Wells Fargo opened unauthorized accounts “behind their back,” not that Wells Fargo conditioned credit or services upon Plaintiffs’ agreement to open those accounts. Second, Wells Fargo is permitted to condition its credit or services on a customer opening a deposit account or obtaining a loan, under the traditional bank product exception expressly stated in the statute. Third, by pleading that Plaintiffs did not want the unauthorized accounts that WF allegedly opened, Plaintiffs admit that Wells Fargo’s alleged conduct did not interfere with a market that would otherwise have existed for those accounts and so was not anticompetitive, as the statute requires. The claim must be dismissed. Claim 14 (RICO, 18 U.S.C. § 1962(c)): Plaintiffs allege that the RICO “enterprise” consists of Wells Fargo and its employees, which is not distinct from the RICO “person” they are suing, as required for a RICO claim under Section 1962(c). Moreover, Plaintiffs fail to plead the predicate acts of wire, mail, and bank fraud with the requisite particularity. The claim must be dismissed. Claim 15 (Electronic Mail Fraud, 18 U.S.C. § 1037): There is no private right of action to enforce this federal criminal statute, so this claim must be dismissed. Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 8 of 40 viii Claim 16 (Injunctive Relief): Injunctive relief is a potential remedy for a properly pleaded claim, not a distinct claim or cause of action of its own. The claim must be dismissed. Claim 17 (Intentional or Negligent Infliction of Emotional Distress): Plaintiffs do not plead any physical manifestation (illness or bodily harm) as required for negligent infliction of emotional distress. And a claim against a company for intentional infliction of emotional distress by allegedly failing to prevent its employees from inflicting emotional distress is not cognizable in Utah. The claim must be dismissed. All Claims: The Second Amended Complaint lists 80 plaintiffs in the caption, but provides factual allegations concerning customer activity for only three identifiable plaintiffs. The complaint should be dismissed for failure to state a claim as to the 77 Plaintiffs who make no allegations whatsoever concerning their customer relationship with Wells Fargo. In the alternative, the Court should order a more definite statement under Rule 12(e), requiring Plaintiffs to identify which claims apply to which Plaintiffs and to make specific factual allegations for each Plaintiff sufficient to support each claim alleged on behalf of that Plaintiff. STATEMENT OF FACTS Procedural Background 1. On September 8, 2016, the City Attorney of Los Angeles, the Consumer Financial Protection Bureau (“CFPB”), and the Office of the Comptroller of the Currency (“OCC”) announced a settlement with Wells Fargo, under which Wells Fargo agreed to pay $185 million in penalties and $5 million in redress to customers in connection with allegations of improper sales practices. See Second Amended Complaint (“SAC” or “Complaint”), Ex. B (Consent Order); SAC ¶ 123, n.11. Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 9 of 40 ix 2. The following week, three of the current named Plaintiffs filed a putative class action complaint alleging 10 claims. (ECF No. 2.) 3. On September 26, 2016, 32 named Plaintiffs filed a first amended complaint in this action, alleging 17 claims. (ECF No. 6.) Summons was served on Wells Fargo the following day. 4. On October 14, 2016, the parties stipulated to a 30-day extension of Wells Fargo’s deadline to respond to the first amended complaint (ECF No. 8), which was approved by Court Order on October 17, 2016 (ECF No. 12). 5. On November 1, 2016, the parties stipulated that Plaintiffs would be granted leave to file a Second Amended Complaint for the purpose of adding additional plaintiffs, correcting the names of some existing plaintiffs, and dismissing certain plaintiffs, on condition that Plaintiffs provide Wells Fargo with identifying information to enable Wells Fargo to respond to the complaint; the parties further stipulated that Wells Fargo would have 21 days to respond to the Second Amended Complaint. (ECF No. 13.) This stipulation was approved by Court Order the next day. (ECF No. 14.) 6. On November 3, 2016, Plaintiffs filed the Second Amended Complaint. (ECF No. 15.) Among other things, the Second Amended Complaint increased the number of named plaintiffs to 80 (net of the dismissal of certain prior plaintiffs). It continues to allege the same 17 claims as the first amended complaint2. 2 With each iteration of the complaint, the causes of action listed on the caption page have differed from those set forth in the body of the document. The number of causes of action referenced here are based on the bodies of the complaints. Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 10 of 40 x Allegations of the Second Amended Complaint 7. Although the Second Amended Complaint names 80 plaintiffs, it includes factual allegations concerning Wells Fargo’s customer relationships with only three identifiable plaintiffs: “Plaintiff Tracy [Kilgore],” “Plaintiff Anu [Sood],” and “Plaintiff Steve[n Stetzel].” SAC ¶¶ 169, 214, 233.3 The Complaint mentions seven additional plaintiffs only to recite where they reside, id. ¶¶ 1-7,4 while at least 67 of the plaintiffs are not mentioned at all. 8. All 17 claims in the Second Amended Complaint appear to be asserted against all defendants—viz., WF Bank, WF Co., and “Does 1-5,300.” In the Complaint, Plaintiffs refer to WF Bank and WF Co. collectively as “Wells Fargo,” and to Wells Fargo and the Doe defendants collectively as “Defendants,” making it impossible to distinguish the alleged conduct of any defendant in particular. See SAC at 2 (preamble). WF Bank is a national bank offering personal and commercial banking services. SAC ¶ 11. It is a subsidiary of WF Co., a Delaware corporation. Id. ¶ 10. The Second Amended Complaint does not describe the 5,300 Doe defendants, but it appears the Doe defendants are intended to represent Wells Fargo employees. See id. ¶ 225. 9. Instead of alleging the factual circumstances underlying the claims of each Plaintiff against each defendant, the Second Amended Complaint takes an approach of making 3 The Second Amended Complaint also refers to “Plaintiff Matthew” (SAC ¶ 125), but there are two Plaintiffs with that name; “Plaintiff Jennifer” (id. ¶ 233), but there are four Plaintiffs with that name; and “Plaintiff J.” (id. ¶ 73 n.7), which is unclear. The Complaint also recites that “Sbeen” (perhaps Plaintiff Sbeen Ajmal) was a “Wells Fargo employee” (id. ¶ 36 n.3), but the complaint does not allege that “Sbeen” was a customer and does not assert employment-related claims. 4 An eighth individual, “Allen Roberts,” is alleged to be a Utah resident, see SAC ¶ 8, but Allen Roberts is not listed on the caption page as a named plaintiff in this action. Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 11 of 40 xi broad, vague allegations on behalf of all “Plaintiffs” against all “Defendants.” Likewise, instead of alleging facts that plausibly demonstrate how the elements of each asserted claim are met, Plaintiffs have taken a kitchen sink approach, citing a variety of statutes and torts with little or no relevance to the circumstance, reciting at least some of the elements of those claims in conclusory fashion, and then inserting streams of allegations that often appear to have little relevance to the claim at issue. As to some of Plaintiffs’ claims, the first claim for example, it is difficult to discern what cause of action is being alleged and on what grounds. See, e.g., SAC ¶¶ 95-101. 10. At a high level, the Second Amended Complaint alleges that Wells Fargo failed adequately to secure customer personal information and to prevent unauthorized access, use, and disclosure of that information, resulting in “identity theft” by Wells Fargo employees and certain other harms. Some of Plaintiffs’ allegations appear to track the findings of the CFPB regarding certain Wells Fargo Bank sales practices, and allege improper conduct by bank employees who opened customer accounts without customer authorization. Other allegations are not clearly tied to Wells Fargo’s sales practices, and appear to involve instances of more garden-variety, third party identity theft as to which Plaintiffs are dissatisfied with Wells Fargo’s response. See, e.g., SAC ¶ 233 (“Plaintiff Steve” once “had a mortgage with Wells Fargo”; more recently, Wells Fargo issued “a credit card in his name to an unknown individual who charged $5,000.”); id. ¶ 125 (“Plaintiff Matthew was not an account holder with Wells Fargo, however he was involved in an identity theft issue with Wells Fargo” where someone opened a line of credit in his name and charged $30,000 to it). Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 12 of 40 xii 11. Plaintiffs seek to represent three classes, the first two of which do not even purport to be tied to any alleged harm: (1) all persons who used Wells Fargo services in the last six years; (2) all persons “whose identifying information was stored on Wells Fargo’s database”; and (3) all persons harmed “because of Wells Fargo’s fraudulent conduct, had improper fees assessed against their accounts, improper overcharges, had their accounts bundled, were sandbagged, or victims of pinning, subjected to financial harm or damages, loss of time, bank charges, late fees, collection costs, and/or other miscellaneous costs and damages.” SAC ¶ 85. Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 13 of 40 1 ARGUMENT I. Legal Standard To survive a motion to dismiss, a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” FDIC v. Aviano, 2016 WL 2344218, *7 (D. Utah May 3, 2016) (unpublished) (Waddoups, J.) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although the court must accept all facts pleaded by the nonmoving party as true, “it won’t accept the non-moving party’s legal conclusions as true. … In particular, ‘[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice.’” Id. at *7 (quoting Iqbal, 556 U.S. at 678). II. The First Claim, However Denominated, Fails Plaintiffs’ first claim references several statutes, but the theory of the claim is unclear. See SAC ¶¶ 94-101. It appears that Plaintiffs intend to allege a violation of the Utah Unfair Competition Act, U.C.A. §§ 13-5a-101 et seq. (“UUCA”), and point to other alleged violations of state and federal law to support the “unlawful” element of that claim. See U.C.A. § 13-5a- 102(4)(a)(i)(A). None of the cited statutes support a claim. Plaintiffs’ claim under the UUCA fails because the UUCA expressly exempts “depository institution[s]” and entities that “control[] a depository institution” from its ambit. U.C.A. § 13-5a-103(2). “Depository institution” includes a bank that provides depository accounts subject to withdrawal by check. Id. §§ 13-5a-102(2), 7-1-103. WF Bank is a depository institution. See SAC ¶¶ 46-47 (WF Bank provides “deposit accounts,” including “checking accounts”). WF Co., as the parent holding company, controls WF Bank within the meaning of the UUCA. See id. ¶ 11 (WF Bank is a subsidiary of WF Co.); U.C.A. § 13-5a- Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 14 of 40 2 102(1) (control includes ownership of at least 5% or ability to influence management). Moreover, Plaintiffs fail to allege that Wells Fargo committed any of the four kinds of business practices covered by the act. See U.C.A. § 13-5a-102(4)(a)(ii). Plaintiffs also cite the Utah Protection of Personal Information Act, but there is no private right of action under that statute, U.C.A. § 13-44-301(2), which in any event does not apply to financial institutions like WF Bank. See id. § 13-44-201(3); 15 U.S.C. § 6809(3)(A); 12 U.S.C § 1843(k). Plaintiffs further cite the Gramm-Leach-Bliley Act, 15 U.S.C § 6801 et seq., but there is no private right of action under that statute either. See infra Part V.5 III. The Stored Communications Act Does Not Apply Here (Second Claim) The Stored Communications Act (“SCA”) prohibits those who provide an “electronic communication service” (“ECS”) or “remote computing service” (“RCS”) to the public from divulging the contents of a subscriber’s communications in certain circumstances. See 18 U.S.C. § 2702. Congress enacted the SCA in 1986 as part of an effort to update the Wiretap Act for the digital age.6 Subject to various exceptions, the SCA provides that: (1) “a person or entity [a] providing an electronic communication service to the public [b] shall not knowingly divulge to any person or entity [c] the contents of a communication [d] while in electronic storage by that service”; and (2) “a person or entity [a] providing remote computing service to the public [b] shall not knowingly divulge to any person or entity [c] the contents of any communication [d] which is carried or maintained on that service [e] on behalf of, and received by means of 5 The complaint also refers to a “Deceptive Trade Practices Act” / “Deceptive Practices Act,” SAC ¶¶ 95, 99.d, but Wells Fargo is aware of no federal or Utah statute by that name. 6 See generally In re Zynga Privacy Litig., 750 F.3d 1098, 1103-04 (9th Cir. 2014); Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900-02 (9th Cir. 2008), rev’d on other grounds, 560 U.S. 746 (2010); Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1209–13 (2004). Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 15 of 40 3 electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service [f] solely for the purpose of providing storage or computer processing services to such subscriber or customer.” 18 U.S.C. § 2702(a) (emphasis added). The statute simply does not apply here. First, Plaintiffs have not alleged facts plausibly demonstrating that Wells Fargo provides an ECS or RCS to the public. Plaintiffs vaguely allege that Wells Fargo provides an ECS via its “payment processing equipment,” as well as an RCS by virtue of its “banking services, consumer credit and debit card payments, etc.” SAC ¶¶ 106, 111. But they allege no facts showing how these services constitute the provision of an ECS or RCS.7 Courts have interpreted an ECS “provider” to mean one who actually operates a network that carries data (such as an internet service provider or telecom) or who provides email or similar e-messaging services to the public, and not those who simply conduct business online or process debit or credit card payments. See, e.g., In re Michaels Stores Pin Pad Litig., 830 F. Supp. 2d 518, 523-24 (N.D. Ill. 2011). The court in Michaels rejected the theory that a retailer provided an ECS by “enabl[ing] consumers to pay with credit and debit cards and send or receive electronic communications concerning their account data and PINs to transaction managers, card companies, or banks” (emphasized text identical to Plaintiffs’ allegation here, SAC ¶ 106) because the plaintiff did not allege that the retailer “provides the internet or phone service through which the PIN pad communicates.” 830 F. Supp. 2d at 524; see also Willingham v. Global Payments, Inc., 2013 WL 440702, at *11 (N.D. Ga. Feb. 5, 2013) (unpublished) (“payment processor” does not provide ECS unless it 7 The SCA defines an ECS as “any service which provides to users thereof the ability to send or receive wire or electronic communications” and an RCS as “the provision to the public of computer storage or processing services by means of an electronic communications system.” 18 U.S.C. § 2711(1), (2); id. § 2510(15). Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 16 of 40 4 “provides the underlying service which transports the data”). Moreover, in 1996 Congress amended the definition of “electronic communications” to exclude “electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds,”8 so such information cannot be the basis of labeling Wells Fargo an ECS provider. As to RCS provider, the SCA’s legislative history shows what Congress had in mind: companies that allow users who would otherwise “process data inhouse on the user’s own computer” to instead outsource their data processing or storage needs, for example where “physicians and hospitals maintain medical files in offsite data banks” or subscribers have access to the provider’s computers in “a time-sharing arrangement.” S. Rep. No. 99–541, at 3, 10–11 (1986). Indeed, Congress specifically identified “hospitals [and] banks” as emblematic of the “businesses of all sizes” that “use remote computing services”—not provide them.9 Plaintiffs allege no facts plausibly showing that Wells Fargo operates a network that carries data or an electronic mail or messaging service, or that Wells Fargo allows customers to outsource computer processing or storage that they would otherwise handle in-house on their own equipment—necessitating dismissal.10 8 See 18 U.S.C. § 2510(12)(D); Pub. L. No. 104–132, tit. VII, § 731(1)(C), 110 Stat. 1214, 1303 (1996); United States v. Councilman, 418 F.3d 67, 75 n.11 (1st Cir. 2005). 9 Id. at 10-11 (emphasis added); see also Quon, 529 F.3d at 900-02; W. Robison, Note, Free at What Cost? Cloud Computing Privacy Under the Stored Communications Act, 98 Geo. L.J. 1195, 1207 (2010) (“Congress included the category of [RCS] in the Stored Communications Act to ensure the privacy of data outsourced to these third-party service providers.”). 10 See, e.g., Michaels, 830 F. Supp. 2d at 524; In re Jetblue Airways Corp. Privacy Litig., 379 F. Supp. 2d 299, 310 (E.D.N.Y. 2005); State Wide Photocopy, Corp. v. Tokai Fin. Servs., Inc., 909 F. Supp. 137, 146 (S.D.N.Y. 1995); Yunker v. Pandora Media, Inc., 2013 WL 1282980, at *9 (N.D. Cal. Mar. 26, 2013) (unpublished). Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 17 of 40 5 Second, Plaintiffs have not alleged facts showing that Wells Fargo “[i] knowingly divulge[d] to any person or entity [ii] the contents of a communication.” 18 U.S.C. § 2702(a)(1), (a)(2). Plaintiffs attempt to meet these elements by alleging that Wells Fargo “fail[ed] to take commercially reasonable steps to safeguard [customers’] sensitive private financial information.” SAC ¶¶ 107, 112. But courts have rejected precisely these kinds of claims—that a defendant “fail[ed] to take reasonable steps to safeguard data”—because the SCA requires that “the defendant ‘knowingly divulge[d]’ covered information, not merely that the defendant knowingly failed to protect the data.” Worix v. MedAssets, Inc., 857 F. Supp. 2d 699, 703 (N.D. Ill. 2012); see also Worix v. MedAssets, Inc., 869 F. Supp. 2d 893, 896 (N.D. Ill. 2012) (dismissal where plaintiff “nowhere alleges an actual act by [defendant] that constituted knowing disclosure, only that [defendant’s] actions created or contributed to an unacceptable risk that data would be compromised”); Willingham, 2013 WL 440702, at *12 (unpublished) (same); Muskovich v. Crowell, 1996 WL 707008, at *3-5 (S.D. Iowa Aug. 30, 1996) (unpublished) (similar). Put otherwise, Plaintiffs have not alleged how anything was “divulged”—i.e., how any information was revealed “to anyone outside the scope of the confidential relationship that exists between [Wells Fargo] and its customer.” Flagg v. City of Detroit, 252 F.R.D. 346, 358 (E.D. Mich. 2008) (“divulge” means to “‘mak[e] known’ or reveal[] something which is ‘private or secret’”). To the extent Plaintiffs’ theory is that their account information was divulged to Wells Fargo’s “own employees,” SAC ¶¶ 107, 112, the claim fails because Plaintiffs do not plausibly allege that the “bankers” who allegedly misused Plaintiffs’ information (e.g., id. ¶ 74) did not need access to that information to perform their normal job functions. See 18 U.S.C. § 2702(b)(4)-(5) (ECS and RCS providers permitted to divulge information to persons employed to Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 18 of 40 6 provide the service or as necessarily incident to providing the service); Muskovich, 1996 WL 707008, at *4 (applying these exceptions to dismiss claim that telecom divulged customer information to an employee who “needed to access [that information] to perform his customer- service job,” even though employee misused the information to harass customer). Moreover, Plaintiffs do not allege facts showing how “the contents of a communication” received electronically from Plaintiffs was divulged. 18 U.S.C. § 2702(A)(1)-(2). The SCA distinguishes between (1) the “contents of a communication” (which means “a person’s intended message to another”) sent by a customer over the ECS/RCS; and (2) “a record or other information pertaining to a … customer” maintained by the ECS/RCS, such as the “name,” “address,” “subscriber number or identity,” and “credit card or bank account number” of a customer. See Zynga, 750 F.3d at 1104-06; 18 U.S.C. §§ 2702(a),(c), 2703(c)(2). The SCA permits an ECS/RCS provider to divulge the latter category of customer information “to any person other than a governmental entity.” 18 U.S.C. § 2702(c)(6). Plaintiffs do not allege facts showing that the “private financial information” Wells Fargo allegedly divulged constitute the “contents of a communication” that Plaintiffs sent over a Wells Fargo ECS/RCS, as opposed to ordinary customer information that Wells Fargo has in its own records and is free to disclose so far as the SCA is concerned. See Zynga, 750 F.3d at 1106-07 (SCA “do[es] not preclude the disclosure of personally identifiable information; indeed, [it] expressly allow[s] it”; [t]here is no language in [the SCA] equating ‘contents’ with personally identifiable information”); Hill v. MCI WorldCom Commc’ns, Inc., 120 F. Supp. 2d 1194, 1195 (S.D. Iowa 2000) (“invoice/billing information” not “contents” because it was not “obtained by MCI from listening to or recording actual telephone conversations between Hill and other people,” but rather “obtained from the Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 19 of 40 7 general records MCI maintains on all of its customers in the normal course of its business”).11 Third, Plaintiffs have not alleged facts plausibly showing that Wells Fargo divulged the contents of a communication “while in electronic storage” by its ECS. 18 U.S.C. § 2702(a)(1). “Electronic storage” means “temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof” or “storage of such communication … for purposes of backup protection of such communication.” Id. §§ 2510(17), 2711(1). Plaintiffs do not allege that their “private financial information” was being stored temporarily and incidental to transmission of that information, or that it was being stored for backup protection. See, e.g., Yunker, 2013 WL 1282980, at *8-9; In re Google Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d 125, 146 (3d Cir. 2015); Garcia v. City of Laredo, 702 F.3d 788, 792-93 (5th Cir. 2012). Similarly, Plaintiffs have not plausibly alleged that their “private financial information” is carried or maintained on Wells Fargo’s RCS “solely for the purpose of providing storage or computer processing services,” and that Wells Fargo “is not authorized to access the contents of [their private financial information] for purposes of providing any services other than storage or computer processing.” 18 U.S.C § 2702(a)(2)(B); Flagg, 252 F.R.D. at 358-59. Wells Fargo is plainly permitted to access that information to perform many basic “personal and commercial banking services.” See, e.g., SAC ¶ 11. IV. Plaintiffs Have Not Alleged a Cognizable Invasion of Privacy (Third Claim) Utah follows the Restatement (Second) of Torts, and so recognizes “four distinct kinds” 11 Further, the SCA allows Wells Fargo to divulge any communication as to which Wells Fargo was the intended recipient. See 18 U.S.C. § 2702(b)(3); In re Facebook Privacy Litig., 791 F. Supp. 2d 705, 714 & n.8 (N.D. Cal. 2011); In re Am. Airlines, Inc., Privacy Litig., 370 F. Supp. 2d 552, 560–61 (N.D. Tex. 2005). To the extent Plaintiffs maintain that they communicated their personal information to Wells Fargo, the claim fails for that reason. Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 20 of 40 8 of privacy torts: “(1) intrusion upon the plaintiff’s seclusion or solitude, or into plaintiff’s private affairs, (2) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness, (3) public disclosure of embarrassing private facts about the plaintiff, and (4) publicity which places the plaintiff in a false light in the public eye.” Stien v. Marriott Ownership Resorts, Inc., 944 P.2d 374, 377-78 (Utah Ct. App. 1997); Shattuck-Owen v. Snowbird Corp., 16 P.3d 555, 558 (Utah 2000) (adopting Stein’s analysis). Here, Plaintiffs appear to be asserting the first three kinds of claims. See SAC ¶ 116. But they have not pleaded any of them. The first type of privacy tort, intrusion into private affairs, requires “(1) that there was ‘an intentional substantial intrusion, physically or otherwise, upon the solitude or seclusion of the complaining party’ and (2) that the intrusion ‘would be highly offensive to the reasonable person.’” Stien, 944 P.2d at 378. For the first element, “there must be something in the nature of prying or intrusion.” Id.; see also Barker v. Manti Tel. Co., 2009 WL 47110, at *4 (D. Utah Jan. 6, 2009) (unpublished) (“it is that affirmative physical intrusion, eavesdropping, investigation, examination or prying that constitutes the tort”). “[U]nauthorized prying into the plaintiff’s bank account” has been held to qualify, Stien, 944 P.2d at 379 (citing Haehn v. City of Hoisington, 702 F. Supp. 1526, 1531 (D. Kan. 1988) (in turn citing Brex v. Smith, 146 A. 34 (N.J. Ch. 1929))), but in that case, an outsider (a prosecutor) with no authority whatsoever to access the bank records sought their disclosure. See Brex, 146 A. at 35. The “intrusion” tort does not apply here, where the bank and its employees are accused of misusing information contained in bank records to which they properly had access; there is no prying by one who was freely given, and had the right to access, information, even if he uses it for an unauthorized purpose. See, e.g., Rest. (2d) Torts § 652B, cmt. b (tort consists of the “intrusion itself,” such as “examining [plaintiff’s] Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 21 of 40 9 private bank account,” regardless of whether there is “use of any kind” of the information”); Burger v. Blair Med. Assocs., Inc., 964 A.2d 374, 378 (Pa. 2009) (“‘intrusion upon seclusion’ is not implicated where, as here, the defendant had legitimately obtained the information” and is accused of using it for unauthorized purpose); Harris v. Easton Publ’g Co., 483 A.2d 1377, 1384 (Pa. Super. Ct. 1984) (no intrusion upon seclusion where claimant “voluntarily exposed the facts” to defendant,” regardless of defendant’s unauthorized use of facts). Moreover, as to the second element, a bank’s access of its own customer’s bank records does not constitute “highly offensive” intrusion as Utah courts have consistently applied that element. Cf. Barker, 2009 WL 47110, at *4 (disclosure of plaintiff’s phone records to employer not “highly offensive” even though it led to employee’s resignation); Stien, 944 P.2d at 379 (showing of video of plaintiff’s husband edited in sexually suggestive manner “in poor taste” but not “highly offensive”). The second type of privacy tort, appropriation of name or likeness, requires “(1) appropriation, (2) of another’s name or likeness that has some ‘intrinsic value,’ (3) for the use or benefit of another.” Stien, 944 P.2d at 379 (quoting Cox v. Hatch, 761 P.2d 556, 564 (Utah 1988)). The second element fails if Plaintiffs do not allege that their names or likenesses “have any intrinsic value or that they enjoy any particular fame or notoriety.” Cox, 761 P.2d at 564 (politician not liable to workers whose pictures were used in promotional flyer). Even if a defendant has used the plaintiffs’ name or likeness without permission, there is no “intrinsic value” when the benefit to the defendant “is the same as defendant[] would have had from using the likeness of a number of other [people].” Id. Plaintiffs here do not allege that their names or Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 22 of 40 10 identities have some value beyond those of the general public, and so this theory likewise fails.12 The third type of privacy tort, public disclosure of private facts, requires (1) public disclosure (2) of private facts (3) which would be highly offensive and objectionable to a reasonable person. Stien, 944 P.2d at 380. “Public disclosure ‘means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge…. Thus, communicating a private fact to a small group of persons … does not constitute public disclosure.” Shattuck- Owen, 16 P.3d at 558-59 (affirming dismissal where video shown to a dozen people). Here, Plaintiffs have not alleged facts showing disclosure of their private information to the public at large, and so this theory fails as well.13 V. Plaintiffs Cannot Enforce the Gramm-Leach-Bliley Act (Fourth Claim) Plaintiff’s fourth claim fails because there is no private right of action under the federal Gramm-Leach-Bliley Act, 15 U.S.C § 6801 et seq. See, e.g. Brown v. Global Check Processing, 2014 WL 1882759, at *2 (D. Colo. May 12, 2014) (unpublished); Cummings v. Bank of America, 12 Plaintiffs also allege that Wells Fargo invaded their privacy by “misrepresenting and holding out themselves, as one of Plaintiffs.” SAC ¶ 116.e. Utah does not recognize a common law privacy tort for merely misrepresenting oneself as someone else. To the extent Plaintiffs are rewording their misappropriation claim, it fails for the same reason. 13 Plaintiffs also allege that Wells Fargo violated their right to privacy under the Utah Constitution. SAC ¶ 116.d (citing art. 1, § 1). But there is “no direct statutory or common law private cause of action for violation of provisions of the Utah State Constitution which are not self-executing.” J.B. v. Wash. Cty., 905 F. Supp. 979, 991 n.16 (D. Utah 1995) (citing Brown v. Wightman, L.R.A., 151 P. 366 (Utah 1915)); Devlin v. Smalley, 4 F. Supp. 2d 1315, 1320 n.4 (D. Utah 1998). Nor does there appear to be precedent for applying the Utah Constitution to non- state actors like Wells Fargo. Cf. State v. Beecroft, 813 N.W.2d 814, 837 (Minn. 2012) (“[T]he Minnesota Constitution does not accord affirmative rights to citizens against each other; its provisions are triggered only by state action.”) King v. King, 174 P.3d 659, 664 n.5 (Wash. 2007) (“In general, the provisions of the state constitution govern the relationship between the people and their government and do not control the rights of the people to one another.”). Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 23 of 40 11 N.A., 2012 WL 5285379, at *4 (D. Utah Oct. 25, 2012) (unpublished); Wood v. Greenberry Fin. Servs., Inc., 907 F. Supp. 2d 1165, 1186 (D. Haw. 2012). VI. Plaintiffs Fail to Allege Their Own Performance under Their Contracts with Wells Fargo, or the Necessary Specifics of Those Contracts (Fifth and Sixth Claims) “The elements of a breach of contract claim under Utah law are: ‘(1) a contract, (2) performance by the party seeking recovery, (3) breach of the contract by the other party, and (4) damages.’” Tetra Fin. Grp., LLC v. MAPP Grp., LLC, 2012 WL 33898, at *4 (D. Utah Jan. 6, 2016) (unpublished) (Waddoups, J.) Here, Plaintiffs fail to allege that they have performed under the parties’ contracts. Moreover, a claim for breach of contract must allege “when the contract was entered into by the parties, the essential terms of the contract at issue, and the nature of the defendant’s breach.” Am. W. Bank Members, LC v. Utah, 342 P.3d 224, 231 (Utah 2014). Plaintiffs do not meet this requirement either because they do not allege the specific contractual provisions allegedly breached, or when the contract containing those provisions went into effect for each Plaintiff. See In Re Anthem, Inc. Data Breach Litig., 162 F. Supp. 3d 953, 978 (N.D. Cal. 2016) (dismissing breach of contract claim where the plaintiffs failed to allege the provision of the contract allegedly breached); Stender v. Gerardi, 2008 WL 4452117, at *13 (D. Colo. Sept. 30, 2008) (unpublished) (same); Connolly v. Mitsui O.S.K. Lines (Am.), Inc., 2007 WL 4207836, at *10 (D.N.J. Nov. 21, 2007) (unpublished) (same). Plaintiffs’ fifth and sixth claims for express and implied contract therefore fail. VII. Wells Fargo is Not a Consumer Reporting Agency (Seventh and Eighth Claims) Plaintiffs contend Wells Fargo violated certain provisions of the Fair Credit Reporting Act (“FCRA”) governing “consumer reporting agencies.” SAC ¶¶ 176, 181 (citing 15 U.S.C. § 1681(b)). Plaintiffs, however, do not allege that Wells Fargo is a consumer reporting agency Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 24 of 40 12 within the meaning of the FCRA—not even in conclusory fashion, let alone by plausible factual allegations. This dooms their claim. See Tierney v. Advocate Health & Hosps. Corp., 797 F.3d 449, 451 (7th Cir. 2015) (“plaintiffs must plausibly allege that the reasonable-procedures provision applies in the first place, which includes, for a start, properly pleading that [defendant] is a ‘consumer reporting agency.’”). A comparison of the statutory definition of “consumer reporting agency” and Plaintiffs’ allegation, with emphasis added to show deviations, reveals the claim’s deficiencies: 15 U.S.C. § 1681a(f) SAC ¶ 180 “The term ‘consumer reporting agency’ means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.” “Wells Fargo is a consumer reporting agency as defined under the FCRA because Wells Fargo through third parties, for monetary fees, regularly engages, in part, in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties and/or uses interstate commerce for the purpose of preparing and/or furnishing consumer reports.” Plaintiffs have deviated from the statute, most notably by pleading that Wells Fargo is a consumer reporting agency because through third parties—i.e., through actual consumer reporting agencies—it does what a consumer reporting agency does. This nonsensical theory would turn every person who uses a consumer reporting agency into such an agency. Even if Plaintiffs had properly recited the elements of the “consumer reporting agency” definition it would not suffice, because “a ‘threadbare recital’ of the statutory elements” of this definition is “insufficient under Twombly and Iqbal.” Tierney, 797 F.3d at 452. Plaintiffs have not, and cannot, plead facts establishing that Wells Fargo meets the definition. Indeed, the Seventh Circuit has twice rejected as “frivolous” claims that a bank like Wells Fargo is a Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 25 of 40 13 consumer reporting agency under the FCRA. See Frederick v. Marquette Nat’l Bank, 911 F.2d 1, 2 (7th Cir. 1990) (affirming dismissal of “frivolous” claim because the FCRA “is not even potentially applicable” to bank, which is not a consumer reporting agency); Mirfasihi v. Fleet Mortg. Corp., 551 F.3d 682, 686 (7th Cir. 2008) (FCRA claim “has no possible merit, and in fact is frivolous” because defendant “is not a consumer reporting agency—it is a bank”). Plaintiffs allege no facts showing how Wells Fargo gets paid to assemble or evaluate consumer information for the purpose of furnishing consumer reports to third parties. 15 U.S.C. § 1681a(f). “Using information internally does not count as ‘furnishing … to third parties.’” Tierney, 797 F.3d at 453. Moreover, the FCRA excludes from its definition of “consumer report,” inter alia, any “report containing information solely as to transactions or experiences between the consumer and the person making the report.” 15 U.S.C. § 1681a(d)(2)(A)(i). Thus any information Wells Fargo might send to a third party concerning its experiences with its own customers would not count. See Tierney, 797 F.3d at 452. Accordingly, Plaintiffs’ seventh and eighth claims must be dismissed. See id. at 453-54. VIII. The Declaratory Judgment Claim Falls with the Contract Claims (Ninth Claim) Plaintiffs’ ninth claim seeks a declaratory judgment that “Wells Fargo has breached a contract.” SAC ¶ 196. It therefore fails for the same reasons as the breach of contract claims. IX. Wells Fargo Cannot Convert Information or Funds on Deposit (Tenth Claim) Plaintiffs appear to allege two theories of conversion. First, Plaintiffs seem to allege that Wells Fargo converted their “private information” / “confidential information.” See SAC ¶¶ 166–67, 200. Second, Plaintiffs appear to allege that Wells Fargo converted their money on Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 26 of 40 14 deposit with the bank. See id. ¶¶ 199, 201–05.14 Both theories fail under Utah law. First, no conversion action lies for Plaintiffs’ “private information” because it is intangible and because Plaintiffs have not been deprived of their own use of that information. Utah, which follows the Restatement (Second) of Torts, does not allow a conversion claim for intangible property. See Margae, Inc. v. Clear Link Techs., LLC, 620 F. Supp. 2d 1284, 1287 (D. Utah 2009) (Waddoups, J.) (citing Rest. 2d Torts § 242(2)). As this Court explained: In Jones [v. Salt Lake City Corp., 78 P.3d 988, 992 (Utah Ct. App. 2003)], the court defined conversion as “an act of wilful interference with a chattel, done without lawful justification by which the person entitled thereto is deprived of its use and possession.” … [¶] [I]t would be nonsensical to apply this definition of conversion to something that was truly intangible, such a song. That is because a song, once memorized, can be “stored” in a person’s mind. Once the song is in a person's mind, there is no way that someone else could “deprive” that person’s “use and possession” of the song. Of course, a handwritten original copy of the song or a recorded version of the song could be converted. But the song itself could not. Id. at 1288. Just like a song, Plaintiffs’ personal information is the kind of intangible property that can be used or possessed without depriving another of its use or possession. “Thus, to the extent that [Plaintiffs] allege[] conversion of intangible property, such as … information, [their] claims fail.” Id. at 1287; see also Global Fitness Holdings, LLC v. Fed. Recovery Acceptance, Inc., 127 F. Supp. 3d 1198 (D. Utah 2015) (applying Rest. 2d Torts § 242(2) to predict Kentucky law) (“names of customers” and “billing information” are intangibles not subject to conversion). Second, no conversion action lies for money on deposit at Wells Fargo because it is 14 Plaintiffs also mention “mortgages,” see SAC ¶ 201, but allege no facts showing how Wells Fargo willfully interfered with, and deprived Plaintiffs of the use and possession of, any mortgage document. See Margae, Inc. v. Clear Link Techs., LLC, 620 F. Supp. 2d 1284, 1287- 88 (D. Utah 2009) (conversion applies to intangible property if merged in a document, and requires interference depriving entitled person of use/possession). Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 27 of 40 15 black-letter law that when funds are deposited in a bank, the money becomes the property of the bank and the depositor has a mere claim for payment (sometimes called a “chose in action”)15 against the bank.16 Because “the money thus becomes the literal property of the bank, it cannot be tortiously converted by the bank.” Crocker-Citizens Nat’l Bank v. Control Metals Corp., 566 F.2d 631, 637 (9th Cir. 1977).17 Thus, Plaintiffs’ tenth claim should be dismissed. 15 A “chose in action” is not a right to immediate possession, but only a right to sue. See, e.g., Barron’s Law Dict. (5th ed.) (“chose”); Wambeke v. Hopkin, 372 P.2d 470, 476 (Wyo. 1962). 16 See United States v. Intermountain Region Concrete Co., Inc., 636 F. Supp. 280, 284 (D. Utah 1986) (“Under Utah law, as under the law of many other jurisdictions, the relationship of a bank to its depositor is generally that of a debtor to a creditor. Such a relationship makes the bank the owner of deposited funds, but the law recognizes that the depositor retains a right to withdraw those funds—a right usually described as a chose in action.” (internal citations omitted)), rev’d on other grounds but aff’d in relevant part sub nom United States v. Cache Valley Bank, 866 F.2d 1242, 1244 (10th Cir. 1989); Walker Bank & Tr. Co. v. First Sec. Corp., 9 Utah 2d 215, 218 (1959) (“Between the bank and depositor [the relationship] is that of debtor-creditor to the extent of the customer’s balance”); Holt v. Bayles, 39 P.2d 715, 718 (Utah 1934) (same); Roberts v. Lynch, 190 P. 930, 930 (Utah 1920) (“[T]he relation between a general depositor and a bank is that of creditor and debtor; … the general deposit becomes the property of the bank and becomes and is part of a general fund from which the depositor is paid on demand.”). 17 See also Parker State Bank v. Pennington, 9 F.2d 966, 969 (8th Cir. 1925) (“The money deposited with the bank was not a special deposit, as such as deposit consists in the placing of specific kinds of money or property in the possession of the bank, with an obligation of the bank to return the identical thing deposited; the depositor retaining title. The plaintiff, therefore, was not entitled to maintain an action for conversion, because an action of that nature does not lie for the conversion of money, unless there was an obligation to return the specific or identical money entrusted to the care of the bank.” (internal citations omitted)); Newbro v. Freed, 409 F. Supp. 2d 386, 396 (S.D.N.Y. 2006); Tevdorachvili v. Chase Manhattan Bank, 103 F. Supp. 2d 632, 643 (E.D.N.Y. 2000); Mijatovich v. Columbia Sav. & Loan Ass’n, 522 N.E.2d 728, 730–31 (Ill. App. Ct. 1988). Cf. Citizens Bank of Md. v. Strumpf, 516 U.S. 16, 21 (1995) (“Respondent’s [argument] … rests on the false premise that petitioner[] … took something from respondent, or exercised dominion over property that belonged to respondent. That view of things might be arguable if a bank account consisted of money belonging to the depositor and held by the bank. In fact, however, it consists of nothing more or less than a promise to pay, from the bank to the depositor, and petitioner’s temporary refusal to pay was neither a taking of possession of respondent’s property nor an exercising of control over it, but merely a refusal to perform its promise.” (internal citations omitted)); United States v. Lee, 973 F.2d 832, 835 (10th Cir. 1992) (McKay, C.J., concurring) (“A bank account is not a storage vault for a depositor’s money. It is Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 28 of 40 16 X. Plaintiffs Have Not Pleaded Fraud with Sufficient Particularity (Eleventh Claim) The elements of fraud are: “(1) that a representation was made (2) concerning a presently existing material fact (3) which was false and (4) which the representor either (a) knew to be false or (b) made recklessly, knowing that there was insufficient knowledge upon which to base such a representation, (5) for the purpose of inducing the other party to act upon it and (6) that the other party, acting reasonably and in ignorance of its falsity, (7) did in fact rely upon it (8) and was thereby induced to act (9) to that party’s injury and damage.” Armed Forces Ins. Exch. v. Harrison, 70 P.3d 35, 40 (Utah 2003). Fraud must be pleaded with particularity. Fed. R. Civ. P. 9(b). Among other things, “a complaint alleging fraud must ‘set forth the time, place and contents of the false representation, the identity of the party making the false statements and the consequences thereof.’” Tal v. Hogan, 453 F.3d 1244, 1263 (10th Cir. 2006); Lauer v. Wells Fargo Mortg., 2016 WL 3882477, at *2 (D. Utah June 9, 2016) (unpublished) (same). Plaintiffs have failed to plead any of these basic facts, let alone facts plausibly demonstrating that each of WF Bank and WF Co. made false representations of fact on which each of the Plaintiffs reasonably relied to his or her detriment. Indeed, Plaintiffs’ complaint contains no allegations whatsoever concerning the vast majority of the named Plaintiffs, and fails to distinguish between WF Bank and WF Co., instead collectively referring to “Wells Fargo” or “Defendants” (which further includes the 5,300 Doe defendants). Accordingly, Plaintiffs’ eleventh claim must be dismissed. nothing more than evidence of a credit relationship between a bank and its customer. The funds are ‘owned’ by the bank which has borrowed from its depositor. Until repaid, the funds ‘on deposit’ belong to the bank which is a debtor of the customer. The customer does not ‘own’ any money until the bank honors a withdrawal record of transfer request. One cannot replevin deposited funds.” (emphasis added)). Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 29 of 40 17 XI. Plaintiffs Have Not Properly Pleaded Unjust Enrichment (Twelfth Claim) “[W]here an express contract covering the subject matter of the litigation exists, recovery for unjust enrichment is not available.” U.S. Fid.& Guar. Co. v. U.S. Sports Specialty Ass’n, 270 P.3d 464, 468-69 (Utah 2012). Plaintiffs allege that they “entered into valid and enforceable agreements with Defendants” governing their banking relationship with Wells Fargo. SAC ¶ 137. Accordingly, the twelfth claim for unjust enrichment fails. See Aviano, 2016 WL 2344218, at *8-9. XII. The Federal Anti-Tying Statute Does Not Apply (Thirteenth Claim) Federal law prohibits banks from engaging in certain tying arrangements: “A bank shall not in any manner extend credit, lease or sell property of any kind, or furnish any service, or fix or vary the consideration for any of the foregoing, on the condition or requirement … that the customer shall obtain some additional credit, property, or service from such bank other than a loan, discount, deposit, or trust service.” 12 U.S.C. § 1972(1)(A) (emphasis added). The emphasized language, called the “traditional bank product exception,” permits a bank “to extend credit, … furnish services, or vary prices on the condition that the customer … [o]btain a loan, discount, deposit, or trust service from the same bank.” O.C.C. Bulletin 1995-20 (Apr. 14, 1995); see also Stefiuk v. First Union Nat’l Bank of Fla., 61 F. Supp. 2d 1294, 1297-98 (S.D. Fla. 1999); Nesglo, Inc. v. Chase Manhattan Bank, N.A., 506 F. Supp. 254, 263-64 (D.P.R. 1980) (history and purpose of exception).18 The anti-tying provisions do not forbid a bank to “cross- sell or cross-market products or services.” O.C.C. Bulletin 1995-20. 18 The statute also authorizes the Federal Reserve to permit additional exceptions, 12 U.S.C. § 1972(1), and the Federal Reserve has extended the “traditional bank product exception” to products offered by affiliates of the bank. See 12 C.F.R. § 225.7(b)(1). Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 30 of 40 18 To show a violation of Section 1972, Plaintiffs must prove: (1) that a bank conditioned credit or services upon the customer’s obtaining additional credit or services from the bank; (2) other than a traditional bank product; and (3) that the condition placed on the loan “is anticompetitive, that the practice results in unfair competition or could lessen competition, and that the practice benefits the bank in some way other than merely allowing the bank additional asset protection.” Palermo v. First Nat’l Bank & Tr. Co., 894 F.2d 363, 368 (10th Cir.1990); see also Quintana v. First Nat'l Bank, 125 F.3d 862, 1997 WL 618640, at *3 (10th Cir. Oct. 6, 1997) (unpublished table decision). Plaintiffs have not pleaded any of these elements. The first element—that “the purchase of the tied product or service was a mandatory condition or requirement of obtaining” the desired credit or service—requires “proof that a bank conveyed an intention to withhold credit [or service] unless the borrower fulfilled a ‘prerequisite’ of purchasing or furnishing some other product or service.” Morales v. UBS Bank USA, 2016 WL 3746527, at *4 (D. Utah July 8, 2016) (unpublished) (quoting Highland Capital, Inc. v. Franklin Nat’l Bank, 350 F.3d 558, 567 (6th Cir. 2003)). “The borrower must be prevailed upon to agree to the additional product or service, lest credit be denied.” Highland Capital, 350 F.3d. at 567. Here, Plaintiffs generally allege that Defendants set up additional products/services “behind the backs of Plaintiffs” and “without [their] authorization and consent,” not that Plaintiffs were prevailed upon to agree to the additional product under threat that the desired product otherwise would be denied. SAC ¶¶ 233, 238. As the Sixth Circuit has held, an “unauthorized” product that a bank surreptitiously imposed and that a customer “never agreed to purchase” cannot be called “a ‘condition or requirement’ of purchasing the authorized” product. Kenty v. Bank One, Columbus, N.A., 92 F.3d 384, 395 (6th Cir. 1996) (“a valid breach of Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 31 of 40 19 contract claim cannot be converted into an anti-tying claim”). Second, the products that Plaintiffs allege were tied are traditional bank products expressly exempted from the Section 1972. “[T]he statute expressly exempts ‘deposit services,’” and “the opening of a bank account constitutes a deposit service for purposes of the anti-tying statute.” Batten v. Bank One, N.A., 2000 WL 1364408, at *2 (N.D. Ill. Sept. 15, 2000) (unpublished); Stefiuk, 61 F. Supp. 2d at 1298 (statute “exempts from the anti-tying prohibition the condition that a customer obtain a deposit service; i.e., open an account”); see also SAC ¶ 236 (alleging that Defendants caused Plaintiffs “to sign up for accounts”).19 Third, Plaintiffs’ Complaint negates the element of an anticompetitive practice.20 There can be no anti-competitive practice where a plaintiff “did not want to purchase” an allegedly tied bank product that was “unauthorized and undisclosed.” Doe v. Norwest Bank Minn., N.A., 107 F.3d 1297, 1304-05 (8th Cir. 1997) (citing and applying Tenth Circuit’s “anticompetitive practice” standard from Palermo); Batten, 2000 WL 1364408, at *4 (“Because [plaintiff] does 19 The Second Amended Complaint implies that two Plaintiffs, “Jennifer” and “Steve,” received an unwanted “credit card” and/or “line of credit.” SAC ¶ 233. Those are “loan[s],” another kind of exempt traditional bank product. 12 U.S.C. § 1972(1)(A); cf. Peterson v. Wells Fargo Bank, 556 F. Supp. 1100 (N.D. Cal. 1981) (describing credit card as “loan” in context of Section 1972); Uniform Consumer Credit Code § 1.301(25) (defining “loan” to include “the creation of debt by the lender’s payment of or agreement to pay money to the debtor or to a third person for the account of the debtor,” “the creation of debt pursuant to a lender credit card in any manner,” and “the creation of debt by a credit to an account with the lender upon which the debtor is entitled to draw immediately”); B. Clark & B. Clark, The Law of Bank Deposits, Collections and Credit Cards, § 15.02. 20 A tying arrangement is not per se illegal; only arrangements “designed to lessen competition and increase the economic power of the creditor bank” are actionable. Baggett v. First Nat’l Bank, 117 F.3d 1342, 1346 (11th Cir. 1997). “Unless the 'unusual' banking practice is shown to be an anticompetitive tying arrangement which benefits the bank, it does not fall within the scope of the Act's prohibitions.” Parsons Steel, Inc. v. First Alabama Bank, 679 F.2d 242, 245 (11th Cir. 1982); see also Palmero, 894 F.2d at 368 (relying on Parsons Steel). Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 32 of 40 20 not want a bank account in the first place, the effects of [bank’s] practice will not be felt”); cf. Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 16 (1984) (“[W]hen a purchaser is ‘forced’ to buy a product he would not have otherwise bought even from another seller in the tied-product market, there can be no adverse impact on competition because no portion of the market which would otherwise have been available to other sellers has been foreclosed.”). Here, Plaintiffs allege that they were surreptitiously signed up for “accounts they did not want or need.” SAC ¶ 236; see also id. ¶ 233. The anti-tying claim fails for this reason as well.21 XIII. Plaintiffs Do Not Allege a RICO Enterprise Distinct from Defendants or Plead Predicate Acts with Particularity (Fourteenth Claim) Plaintiffs allege a violation of Section 1962(c) of RICO, which prohibits “any person employed by or associated with any enterprise” to “conduct or participate … in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” 18 U.S.C. § 1962(c); SAC ¶ 242. “[F]or purposes of [Section] 1962(c), the defendant ‘person’ must be an entity distinct from the alleged ‘enterprise.’” Brannon v. Boatmen’s First Nat’l Bank, 153 F.3d 1144, 1146 (10th Cir. 1998); Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 160 (2001). “[A] defendant corporation, acting through its subsidiaries, agents, or employees typically can’t be both the RICO ‘person’ and the RICO ‘enterprise.’” George v. Urban Settlement Servs., 833 F.3d 1242, 1249 (10th Cir. 2016); see also Brannon, 153 F.3d at 1147 n.3, 1149 (collecting cases); Bd. of Cty. Comm’rs of San Juan Cty. v. Liberty Grp., 965 F.2d 879, 886 (10th Cir. 1992) (“[O]fficers and employees of an organization cannot, in the ordinary course of their duties, 21 In any event, the thirteenth claim must be dismissed against WF Co. because it is not a “bank.” See 12 U.S.C. § 1972(1); SAC ¶¶ 10-11; Williams v. Porter Bancorp, Inc., 41 F. Supp. 3d 676, 680 (W.D. Ky. 2014) (“a bank holding company cannot be held liable for illegal tying under 12 U.S.C. § 1972”). Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 33 of 40 21 constitute an association in fact separate from the organization itself.”); In re ClassicStar Mare Lease Litig., 727 F.3d 473, 493 (6th Cir. 2013) (cited in George) (parent corporation and its subsidiaries do not ordinarily satisfy the distinctness requirement); Fitzgerald v. Chrysler Corp., 116 F.3d 225, 226–28 (7th Cir. 1997) (cited in George) (because “an employer and its employees cannot constitute a RICO enterprise,” a “manufacturer plus its dealers and other agents (or any subset of the members of the corporate family) do not constitute” a RICO enterprise). Here, Plaintiffs contend that “each Defendant”—WF Co., its subsidiary WF Bank, and the Doe defendants (who appear to be Wells Fargo employees, see SAC ¶ 225)—“is a person,” SAC ¶ 243, and that these same “Defendants form [an] association in fact … and constitute an enterprise,” SAC ¶ 248. Because the alleged enterprise consists of a parent corporation, its subsidiary, and their employees, who are also the defendant “person[s],” and because Plaintiffs merely allege conduct by the “Defendants” collectively without even attempting to show a distinct enterprise, Plaintiffs’ RICO claim must be dismissed for failure to allege a RICO enterprise distinct from the RICO persons. See Brannon, 153 F.3d at 1145-49 (“parent- subsidiary corporate relationship standing alone” insufficient); Liberty Grp., 965 F.2d at 885-86 (organization and its officers and employees insufficient); Dawson v. Goldman Sachs & Co., 2014 WL 5465127, at *7 (D. Colo. Oct. 27, 2014) (unpublished) (factual details must be alleged to support enterprise; “moving target approach” that names a string of participants, known and unknown, and alleges they acted as an association-in-fact improper); Wood v. World Wide Ass’n of Speciality Progs. & Schools, Inc., 2011 WL 3328931, at *5 (D. Utah Aug. 2, 2011) (unpublished) (Waddoups, J.) (“Simply put, the Plaintiffs have not plead[ed] facts sufficient to distinguish between the RICO ‘persons’ and the RICO ‘enterprise.’ To the contrary, the Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 34 of 40 22 complaint clearly asserts that the ‘persons’ and the ‘enterprise’ are one and the same: both are made up of all the Defendants.”); Bates v. Nw. Human Servs., Inc., 466 F. Supp. 2d 69, 85 (D.D.C. 2006) (no distinct enterprise where complaint “neglect[s] to distinguish between the defendants” and “generally treats, and refers to, the defendant corporations as if they were a single, undifferentiated mass”; “if the plaintiffs cannot separate one defendant’s actions from another’s … the Court surely cannot be expected to conclude from the complaint as pled that the defendants are distinct legal entities”). Moreover, Plaintiffs have not properly pleaded the predicate acts of mail fraud, wire fraud, and bank fraud that they allege. All must be pleaded with particularity, and Plaintiffs utterly fail to “set forth the time, place and contents of the false representation, the identity of the party making the false statements and the consequences thereof,” as required. See, e.g., George, 833 F.3d at 1254 (wire and mail fraud); Nat’l Sur. Corp. v. CJM Hospitality, LLC, 2012 WL 12796472, *3 (D. Wyo. Jul. 9, 2012) (unpublished) (bank fraud); Apache Tribe of Okla. v. Betsy Ann Brown, 966 F. Supp. 2d 118, 1194 (W.D. Okla. 2013) (bank fraud). Plaintiffs make only “general allegations about the actions of all Defendants,” and “fail[] to make specific allegations of fraud.” Nat’l Sur. Corp., 2012 WL 12796472, at *3. As in Nielsen v. Patriot Group, LLC, 2016 WL 407073 (D. Utah Feb. 2, 2016) (unpublished) (Waddoups, J.), Plaintiffs offer only “insufficient conclusory allegation[s]” of mail and wire fraud, with “[s]pecific factual allegations regarding correspondence … entirely absent.” Id. at *3. Nor have Plaintiffs alleged facts plausibly showing that they were “deceived or injured by defendants’ misrepresentation,” i.e., that their “injuries were caused by the misrepresentations.” Id. at *4. Accordingly, Plaintiffs’ fourteenth claim must be dismissed. Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 35 of 40 23 XIV. There Is No Private Right of Action for E-mail Fraud (Fifteenth Claim) There is no private right of action for the federal crime of electronic mail fraud, 18 U.S.C. § 1037. See Gordon v. BAC Home Loans Servicing, LP, 2011 WL 1565363, *2 (E.D. Wash. Apr. 25, 2011) (unpublished); Rogerson v. United States, 2009 WL 1361875 at *1, 5 (D.S.D. May 13, 2009) (unpublished); cf. Cent. Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164, 190 (1994) (“We have been quite reluctant to infer a private right of action from a criminal prohibition alone”); Cort v. Ash, 422 U.S. 66, 79–80 (1975) (no private right of action implied from “bare criminal statute”); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007) (no private right of action for federal criminal statutes, including mail fraud, citing United States v. Claflin, 97 U.S. 546, 547 (1878) (“That act contemplated a criminal proceeding, and not a civil action …. It is obvious, therefore, that its provisions cannot be enforced in any civil action ….”)); Lilley v. JPMorgan Chase Bank, 2010 WL 4392561, *4 & n.28 (D. Utah Oct. 28, 2010) (unpublished) (no private right of action for mail or wire fraud). Accordingly, the fifteenth claim must be dismissed. XV. Injunctive Relief Is Not a Standalone Claim (Sixteenth Claim) “‘A request for injunctive relief by itself does not state a cause of action.’ An injunction is a remedy, not a separate claim or cause of action. A pleading can … request injunctive relief in connection with a substantive claim, but a separately pled claim or cause of action for injunctive relief is inappropriate.” Jensen v. Quality Loan Serv. Corp., 702 F. Supp. 2d 1183, 1201 (E.D. Cal. 2010) (internal citations omitted). The sixteenth claim must be dismissed. XVI. Plaintiffs Fail to Plead Infliction of Emotional Distress (Seventeenth Claim) Plaintiffs’ claims for intentional and negligent infliction of emotional distress both fail. Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 36 of 40 24 The claim for negligent infliction fails because Plaintiffs have not alleged that the emotional distress “resulted in illness or bodily harm.” Carlton v. Brown, 323 P.3d 571, 585 (Utah 2014) (“[I]t is not enough for a plaintiff to merely allege emotional distress. Instead, she must prove that distress by means of severe physical or mental manifestations.”). Plaintiffs’ claim against Wells Fargo for intentional infliction fails for two reasons. First, Plaintiffs essentially aver that Wells Fargo failed to prevent its employees from inflicting emotional distress on them. SAC ¶ 308. The Utah Supreme Court has rejected that theory of liability. See Cabaness v. Thomas, 232 P.3d 486, 499 (Utah 2010) (supervisor’s knowing failure to prevent an employee from inflicting emotional anguish on plaintiff does not give rise to valid claim of intentional infliction of emotional distress); Garcia v. Unique Auto Body, Inc., 2016 WL 6603990, at *2 (D. Utah. Nov. 8, 2016) (unpublished). Second, Plaintiffs do not allege the level of “extreme,” “outrageous and intolerable” conduct that “offend[s] against the generally accepted standards of decency and morality” required for this tort. Cabaness, 232 P.3d at 499. “‘To be considered outrageous, the conduct must evoke outrage or revulsion; it must be more than unreasonable, unkind, or unfair.’” Id. at 500. “[M]ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities” do not suffice. Id.; see also Retherford v. AT&T Commc’ns of the Mountain States, Inc., 844 P.2d 949, 977 n. 19 (Utah 1992) (describing outrageous conduct as “extraordinarily vile conduct, conduct that is ‘atrocious, and utterly intolerable in a civilized community’”). The conduct that Plaintiffs claim gave rise to their “anxiety, anger, frustration and distress” is “not getting answers from Defendants, Defendants [sic] cavalier attitude, keeping Plaintiffs … on hold over 4 hours, and not remedying the situation.” SAC ¶ 308. Such alleged conduct is at most an unreasonable and unfair annoyance Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 37 of 40 25 or indignity. See Blakely v. USAA Cas. Ins. Co., 633 F.3d 944, 950-51 (10th Cir. 2011) (insurer’s alleged failure to make adequate and timely repairs, reimbursements, and investigations, while “unreasonable,” was not outrageous and intolerable); Coleman v. Utah State Charter School Bd., 2012 WL 1914072, at *8-9 (D. Utah May 25, 2012) (unpublished) (dismissing claim because allegations that defendant “withheld information” and “made false accusations against [plaintiff] in order to get [plaintiff] fired” did not meet the high bar for “outrageous” conduct, which was “a legal question for the court to resolve”). XVII. The Complaint Contains No Allegations Concerning the Vast Majority of Plaintiffs The Second Amended Complaint names 80 plaintiffs, but provides factual allegations about customer activity for only three identifiable plaintiffs: “Plaintiff Tracy [Kilgore],” “Plaintiff Anu [Sood],” and “Plaintiff Steve[n Stetzel].” SAC ¶¶ 169, 214, 233; see also supra n.3. Seven additional plaintiffs are mentioned only in reciting where they reside, while at least 67 plaintiffs are not mentioned even once. SAC ¶¶ 1-7; see also supra n.4. The Second Amended Complaint should be dismissed for failure to state a claim as to the 77 Plaintiffs who make no allegations whatsoever concerning their customer relationship with Wells Fargo. In the alternative, the Court should order a more definite statement under Rule 12(e), requiring Plaintiffs to identify which claims apply to which Plaintiffs and to make specific factual allegations for each Plaintiff sufficient to support each claim alleged on behalf of that Plaintiff. CONCLUSION For the foregoing reasons, Wells Fargo respectfully requests that this Court dismiss this action for failure to state a claim upon which relief can be granted. Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 38 of 40 26 DATED this 23rd day of November, 2016. MUNGER, TOLLES & OLSON LLP /s/ Eric P. Tuttle Eric P. Tuttle David H. Fry Erin J. Cox RAY QUINNEY & NEBEKER P.C. James S. Jardine Elaina M. Maragakis Michael D. Mayfield Attorneys for Defendants Wells Fargo Bank, N.A. and Wells Fargo & Co. Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 39 of 40 CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of November, 2016, a true and correct copy of the foregoing MOTION AND MEMORANDUM IN SUPPORT OF MOTION TO DISMISS SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UNDER RULE 12(b)(6) OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT UNDER RULE 12(e) was filed using CM/ECF which sent notification of the filing to the following: Zane L. Christensen Steven A. Christensen CHRISTENSEN YOUNG & ASSOCIATES, PLLC 9980 South 300 West, #200 Sandy, UT 84070 /s/ Angelica Torres . Angelica Torres Case 2:16-cv-00966-CW-DBP Document 30 Filed 11/23/16 Page 40 of 40