Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Fifth Third Bank

United States District Court, S.D. Ohio, Western Division

August 28, 2019

CARNELL SMITH, on behalf of himself and all others similarly situated LENOX MAGEE, on behalf of himself and all others similarly situated Plaintiffs,
v.
FIFTH THIRD BANK Defendant.

          Stephanie K. Bowman, Magistrate Judge

          DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (DOC. 83)

          Timothy S. Black, United States District Judge

         This case is before the Court pursuant to the Order of General Reference to United States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the Magistrate Judge reviewed the pleadings filed with this Court and, on April 18, 2019, submitted a Report and Recommendation recommending that the Court grant in part and deny in part Defendant Fifth Third Bank (“Fifth Third”)'s motion to dismiss Plaintiff Carnell Smith's amended complaint (Doc. 55) and motion to dismiss Plaintiff Lenox Magee's complaint (Doc. 70). (Doc. 83). More specifically, the Magistrate Judge recommended denying both motions to dismiss with respect to Plaintiffs' claims that Fifth Third improperly charged fees for “balance inquiries” made using out-of-network ATMs. (Id.). Fifth Third filed objections to that portion of the Report and Recommendation (Doc. 87), to which Plaintiffs filed a joint response (Doc. 97) as well as a notice of supplemental authority (Doc. 98).

         I. Background

         This action consists of two consolidated lawsuits; one filed by Plaintiff Carnell Smith and another filed by Plaintiff Lenox Magee. (See Doc. 64). Both cases were filed as putative class actions, and both assert breach of contract claims alleging that Defendant Fifth Third improperly charged a $2.75 fee for balance inquiries at out-of-network ATMs. (Docs. 1, 52). Plaintiffs attached to their pleadings Fifth Third's Deposit Account Rules and Regulations, as well as Fifth Third's Debit Card Disclosure and Card Agreement, which together constitute the “Agreement” between Plaintiffs and Defendant. (See Docs. 52-1, 52-2).[1] In their respective complaints, Plaintiffs argue that a balance inquiry is not a “transaction” subject to the “transactions” fees noticed in the Agreement. Plaintiffs alternatively argue that a balance inquiry made in conjunction with a withdrawal of funds should be viewed as a single transaction, with a single $2.75 fee assessed.

         The Agreement contains the following general language regarding fees that may be imposed in relation to the use of an ATM:

Fees: We reserve the right to impose a fee and to charge fees upon notice to you. A fee may be imposed by an automated teller machine (ATM), and by any network used to complete the transaction, when you initiate an electronic fund transfer or make a balance inquiry.

(Doc. 52-1 at 23). Elsewhere in the Agreement is an accountholder's agreement “to pay all fees we charge in connection with the Electronic Banking services you obtain.” (Doc. 52-2 at ¶ 8). The term “Electronic Banking” is defined in the Agreement as “services that allow you to access the Account using ATMs . . . to make deposits, transfers or withdrawals to or from the Account.” (Id. at 2). In addition, the Agreement includes a “fee schedule” listing a $2.75 fee “for U.S. transactions” and noting that “[o]ther ATM network owners may also assess a usage fee.” (Doc. 52-1 at 28). A “2.75 [fee] per transaction” for any “Non-Fifth Third ATM transaction[s]” is similarly noted in the Debit Card Disclosure Agreement. (Doc. 52-2 at ¶ 8).

         Defendant Fifth Third filed two motions to dismiss aimed at each of the Plaintiff's complaints. (Docs. 55, 70). The Magistrate Judge issued a Report and Recommendation recommending that the Court grant in part and deny in part Defendants' motions to dismiss, finding that the Court should deny the motions with respect to Plaintiffs' claims asserting breach of contract for improperly charging a $2.75 “transaction” fee for balance inquiries. (Doc. 83 at 27). In doing so, the Magistrate Judge found that in reviewing the Agreement as a whole, the term “transaction” is “at least” ambiguous as to whether the term encompasses balance inquiries. (Id. at 7-14). Defendant filed objections to this portion of the Report and Recommendation (Doc. 87), which the Court will address in turn.

         II. Defendant's objections

         First, Defendant states generally that the Magistrate Judge did not “fully consider” certain provisions contained in the Agreement that “identif[y] a balance inquiry as a separate transaction from a funds transfer.” (Doc. 87 at 5 n.6). Defendant specifically refers to certain provisions in the Agreement governing fees that may be imposed by third parties (not Fifth Third), which expressly mention potential fees associated with balance inquiries.

         One such provision that Defendant notes is the statement from the Rules and Regulations that:

Fifth Third “reserve[s] the right to impose a fee and to charge fees upon notice to you. A fee may be imposed by an automated teller machine (ATM), and by any network used to complete the transaction, when you initiate an electronic fund transfer or make a balance inquiry.”

(Doc. 52-1 at 20) (emphasis added). Defendant also points to the following language from the Debit Card Agreement: “when you use an ATM not owned by us, you may be charged a fee by the ATM operator or any network used (and you may be charged a fee for a balance inquiry even if you ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.