United States District Court, District of Columbia
D. BATES UNITED STATES DISTRICT JUDGE
negligence lawsuit stems from allegedly unauthorized
transfers from plaintiff Mai Thi Thu Tran's Citibank
checking account. Defendant Citibank moved to dismiss,
arguing that Tran's claims are time-barred under the
bank's Client Manual, the Electronic Fund Transfer
Act's (EFTA) statute of limitations, 15 U.S.C. §
1693m(g), and the District of Columbia's Uniform
Commercial Code, D.C. Code § 28:4-406. Citibank also
argues that D.C. law does not recognize claims for gross
negligence. The Court agrees that Tran's claim based on
the EFTA is time-barred and that her claim for gross
negligence is not cognizable under D.C. law. However, her
negligence claim is cognizable, and is not time-barred by
either the Client Manual or D.C. law. Therefore,
Citibank's motion to dismiss will be granted in part and
denied in part.
alleges the following facts in her complaint. Tran is a
“newly arrived immigrant from Vietnam” who
“relies on a translator for English language
communication.” Compl. [ECF No. 1] ¶ 5. In April
2012, she met with a bank representative at one of
Citibank's D.C. branches to discuss opening an account.
Id. ¶ 6. During that initial meeting, she was
presented with English language documents to open an account
and she deposited $200, 000. Id. ¶¶ 5-7.
She was not offered a translator. Id. ¶ 7. At
some point between April 2012 and May 2014, approximately
$170, 000 was withdrawn from her account without her
knowledge or authorization. Id. ¶ 9. Tran
suspects her estranged husband is responsible for the
unauthorized withdrawals. Id. ¶ 14.
reported these improper transactions to a Citibank branch
manager in May 2014. Id. ¶ 11. She then
“secured legal counsel and executed a power of attorney
on May 19, 2014.” Id. ¶ 12. Despite
obtaining English-speaking representation in May 2014, Tran
did not file this lawsuit until August 13, 2015-more than a
year after discovering the unauthorized transactions. Her
complaint asserts two counts of negligence against Citibank.
The first count is simultaneously titled “negligent
business transaction” and violation of the EFTA.
Id. at p. 3. Tran alleges that the bank failed to
protect her account from unauthorized withdrawals, failed to
“ensure that [she] understood critical account terms
and conditions, ” permitted “large sum
withdrawals from [her] account, both in-person and through
automated teller” by a person not listed on the
account, and failed to act within “reasonable
commercial standards.” Id. ¶¶ 18-22.
The second count, gross negligence, alleges similar
misconduct: Citibank grossly deviated from the ordinary
standard of care by failing to ensure that Tran understood
the contract at the initial meeting and understood the
subsequent account disclosures, as well as by failing to
prevent the unauthorized transactions on her account.
Id. ¶¶ 34-39.
has filed a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), arguing that Tran's claims are
time-barred under the one-year limitation period for filing
suit set out in the bank's Client Manual or, in the
alternative, the applicable statutes of limitations under the
EFTA and D.C. law. Def.'s Mem. in Supp. Mot. to Dismiss
[ECF No. 10-1] at 6-10. Tran replies that she cannot be held
to the Client Manual's terms because the documents that
she executed upon opening her account were given to her in
English and no translator was offered or provided to her.
Compl. ¶¶ 7, 24. The Court then ordered
supplemental briefing to address whether Tran signed any
document assenting to the terms of the Client Manual, and
whether any document she signed adequately incorporated the
Client Manual. Aug. 5, 2016, Order [ECF No. 15]; see also
Hirsch v. Citibank, N.A., 603 F. App'x 59, 60 (2d
Cir. 2015) (nonprecedential) (Citibank's “signature
cards were so broadly worded that a reasonable person would
not be on notice as to what external terms and conditions
applied to the agreement to open the account”). In her
supplemental memorandum, Tran alleges that she never
completed a signature card when opening the account in April
2012 and therefore is not bound by the Client Manual.
See Pl.'s Suppl. Mem. [ECF No. 19]. Although
Citibank disputes this, noting that it generally requires new
clients to complete a signature card, it has not produced a
signature card signed by Tran or any evidence that she
Dated:e. See Def.'s Suppl. Mem. [ECF No. 17] at
1; Def.'s Aff. of Karen Biggs [ECF No. 18-1] ¶ 4.
motion to dismiss stage, all of the plaintiff's factual
allegations are taken as true. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In order to survive a
12(b)(6) motion to dismiss, a complaint's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level on the assumption that
all the allegations in the complaint are true.”
Id. (internal citation omitted). The complaint
“must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted). However, the
Federal Rules “require simply a ‘short and
plain statement of the claim' in a complaint, ” and
do not require a plaintiff to anticipate and respond to
affirmative defenses. Jones v. Bock, 549 U.S. 199,
212 (2007) (quoting Fed.R.Civ.P. 8(a)); McNamara v.
Picken, 866 F.Supp.2d 10, 17 (D.D.C. 2012). It is still
possible, though, for a complaint to plead itself out of
court and be conclusively time-barred on its face, in which
case dismissal under Rule 12(b)(6) is appropriate.
Jones, 549 U.S. at 215. In ruling on a motion to
dismiss, the Court may consider documents referenced in but
not attached to a complaint without converting it to a motion
for summary judgment. See, e.g., Kaempe v.
Myers, 367 F.3d 958, 965 (D.C. Cir. 2004).
Court can dispense quickly with Tran's gross negligence
claim because the District of Columbia does not recognize
degrees of negligence outside of situations in which such
degrees are statutorily laid out. Hernandez v. District
of Columbia, 845 F.Supp.2d 112, 115-16 (D.D.C. 2012).
Tran points to no such statute here, and hence her gross
negligence claim does not survive.
Court can similarly dispose of her EFTA claims. The EFTA, 15
U.S.C. §§ 1693- 1693r, governs transfers of funds
that originate electronically. Id. § 1693a(7).
It requires that “any action . . . be brought . . .
within one year from the date of the occurrence of the
violation.” Id. § 1693m(g). Tran's
complaint does not allege when the funds were withdrawn from
her account. Viewing the facts in the light most favorable to
her, the Court will assume that all of the allegedly
unauthorized transactions occurred in May 2014-when she
discovered them. Tran did not file this suit until August
13, 2015-more than a year later-and therefore any claims
arising under the EFTA are untimely.
remains is Tran's negligence claim. Citibank argues
that this claim is time-barred under the D.C. Uniform
Commercial Code, D.C. Code § 28:4-406(f). The D.C. Code,
rather than the EFTA, applies to any withdrawals originating
by non-electronic means such as checks. Peters v. Riggs
Nat'l Bank, N.A., 942 A.2d 1163, 1166 (D.C. 2008);
15 U.S.C. § 1693a(7) (EFTA does not govern “a
transaction originated by check . . . or similar paper
instrument”). Section 28:4-406(f) of the D.C. Code
states: “a customer who does not within one year after
the statement or items are made available to the customer . .
. discover and report the customer's unauthorized
signature on or any alteration on the item is precluded from
asserting against the bank the unauthorized signature or
alteration.” Citibank argues that this provision limits
Tran from bringing any claims against Citibank more than a
year after the violation occurred. But this is incorrect. The
statute “establishes an absolute notice requirement,
” not a limitations period. See Peters, 942
A.2d at 1167. Thus, Tran had one year after she received a
statement indicating that the unauthorized withdrawal was
made to notify the bank of the unauthorized
withdrawal, should she wish to preserve a right to bring suit
at a later date. Because at this stage we have assumed that
the unauthorized withdrawals occurred in May 2014, the same
month that Tran reported the withdrawals to the bank, Tran
would easily meet this requirement. Thus, Tran's claims
are not time-barred under D.C. Code § 28:4-406(f).
Citibank argues that the Client Manual bars Tran's
remaining negligence claim. While the default statute of
limitations in D.C. is three years from when the claim
accrued, see D.C. Code § 12-301(8), this
limitations period may be shortened by contract, see
Peters, 942 A.2d at 1167-68. The Client Manual provides
that: “Unless otherwise required by law, an action,
proceeding or arbitration by [the client] to enforce an
obligation, duty or right arising under this Agreement or by
law with respect to [the client's] account or any account
service must be commenced within one (1) year after the cause
of action accrues.” Client Manual [ECF No. 10-2] at 11;
see also id. at 13 (requiring that “any suit
or demand for arbitration . . . based on an account error,
discrepancy, or unauthorized transaction must be” filed
within one year after the first account statement on which
the problem appears). Tran alleges that “[i]n May of
2014, after discovering that her accounts had been
misappropriated, [she] immediately notified [the bank branch
manager].” Compl. ¶ 11. Tran did not file this
suit until August 13, 2015, more than a year after she
discovered the unauthorized withdrawals. Thus, if the Client
Manual governs, then even assuming that the claim accrued at
the time Tran discovered it, her claims would fall outside of
the one-year deadline.
Tran alleges sufficient facts to indicate that she may not be
bound by the Client Manual. In her complaint, Tran asserts
that the Client Manual should not control because there was
no “meeting of the minds between the parties”
given that the documents she allegedly signed to open an
account were in English. Pl.'s Opp. Mot. to Dismiss [ECF
No. 13] at 2, 5. But leaving aside the question whether the
language barrier prevented a contract from being formed, it
is apparent from the parties' supplemental briefing that
they dispute whether Tran signed any documents
consenting to the terms of the Client Manual in April 2012.
Tran asserts that she did not. Pl.'s Suppl. Mem. at 2.
Citibank disputes this, but provides only a blank signature
card and asserts that its regular business practice is to
require new clients to complete a “signature
card” assenting to the Client Manual. Def.'s Suppl.
Mem. at 1; Def.'s Aff. of Karen Biggs ¶
Because at this time the Court will assume that Tran's
assertion is true, ...