Ehmann v. Wells Fargo Bank, N.A.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
LINDA EHMANN,
Plaintiff,
vs.
WELLS FARGO BANK, N.A.,
Defendant.
Case No. 3:22-cv-00154-JMK
ORDER GRANTING PARTIAL
MOTION TO DISMISS
At Docket 22, Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) moves
for partial dismissal of Plaintiff Linda Ehmann’s Amended Complaint. 	Ms. Ehmann
responded at Docket 25 and Wells Fargo replied at Docket 26. 	The Court took Wells
Fargo’s motion under advisement without oral argument.
I. 	BACKGROUND
The Court adopts the factual background recounted in its Order at Docket 18.
However, it briefly summarizes the facts as they are alleged in Ms. Ehmann’s Amended
Complaint, as well as the procedural history pertinent to this motion.
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In 2016, Linda Ehmann and Floyd R. Ehmann entered into an agreement with
Wells Fargo to jointly lease a safety deposit box at Wells Fargo’s branch office in Palmer,
Alaska.1
On February 22, 2021, Wells Fargo allowed an individual other than the two
joint lessees to access the safety deposit box without first requiring proof of identity or
authority to access the box.2 As a result, this individual removed the property contained in
the box, which Ms. Ehmann estimates is worth at least $300,000.3 Following this incident,
Michael Scott, the manager of Wells Fargo’s Palmer branch, promised Ms. Ehmann that
he would “obtain the return of the property,” but failed to do so.4
Ms. Ehmann ultimately filed a complaint against Wells Fargo, initiating this
lawsuit. 	In lieu of answering, Wells Fargo moved to dismiss for failure to state a claim
upon which relief can be granted.5 	At Docket 18, this Court addressed the motion to
dismiss and determined that Ms. Ehmann failed to state a claim for relief for various unfair
trade practices and tort claims, as the claims were “mentioned without any indication as to
what state or federal statute or alternative theory of liability Plaintiff intends to rely on in
bringing such claims.”6 Furthermore, the Court noted that the initial complaint did not set
forth facts “to distinguish these claims from Plaintiff’s breach of contract claim or
otherwise define and support a distinct cause of action.”7 Accordingly, the Court dismissed
1 Docket 19 at ¶ 5.
2 Id. at ¶ 8.
3 Id. at ¶¶ 9, 12.
4 Id. at ¶ 10.
5 Docket 5.
6 Docket 18 at 5.
7 Id.
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Ehmann v. Wells Fargo Bank, N.A. 	Case No. 3:22-cv-00154-JMK
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the complaint “to the extent it seeks to raise any cause of action apart from a breach of
contract claim.”8 It then provided Ms. Ehmann an opportunity to amend her complaint “to
remedy the deficiencies noted” in the Court’s order.9
Ms. Ehmann duly amended her complaint on December 29, 2022.10 	The
amended complaint made the same allegations as the initial complaint, but specified several
additional claims, including claims under the Alaska Unfair Trade Practices and Consumer
Protection Act (“UTPA”). 	Wells Fargo now moves to dismiss nine of the eleven claims
pled in the Amended Complaint.
II. 	LEGAL STANDARD
A party may move for dismissal when a plaintiff’s complaint fails “to state a
claim upon which relief can be granted.”11 	To survive a motion to dismiss under
Rule 12(b)(6), a complaint must contain enough facts that, if taken as true, would state a
legal claim to relief that is “plausible on its face.”12 Conclusory statements, unwarranted
inferences, and “[t]hreadbare recitals of the elements of a cause of action” will not defeat
dismissal; a plaintiff must “plead[] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”13 	In
reviewing the motion to dismiss, the court construes all facts alleged in the complaint in
8 Id. at 9.
9 Id.
10 Docket 19.
11 Fed. R. Civ. P. 12(b)(6).
12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and quotation marks omitted);
accord Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
13 Iqbal, 556 U.S. at 678.
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Ehmann v. Wells Fargo Bank, N.A. 	Case No. 3:22-cv-00154-JMK
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the light most favorable to the plaintiff.14 Ultimately, dismissal for failure to state a claim
is proper “if it appears beyond doubt that the plaintiff can prove no set of facts in support
of [their] claim which would entitle [them] to relief.”15
III. 	DISCUSSION
Wells Fargo seeks dismissal of claims one through six and nine through
eleven in Ms. Ehmann’s First Amended Complaint. It argues that claims one through six—
which assert violations of the UTPA—are insufficiently pled, as Ms. Ehmann has not
alleged that Wells Fargo engaged in any unfair or deceptive conduct beyond its failure to
meets its contractual obligations.16 Additionally, it maneuvers through each of these claims
and illustrates that Ms. Ehmann has not pled facts that support the required elements.17
With respect to claim nine, Wells Fargo asserts that breach of promise is not a cognizable
claim and that Ms. Ehmann has not pled facts that show a legally enforceable promise.18
Finally, it submits that claims ten and eleven must be dismissed because they seek to assert
tort claims where the only duty arises from a contractual promise.19
In 	response, 	Ms. 	Ehmann 	insists 	that 	dismissal 	of 	these 	claims 	is
unwarranted. 	She argues that she need not directly quote the sections of the UTPA on
which she relies in her complaint and that Alaska case law recognizes that a party can be
14 Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) (quoting Skilstaf, Inc. v.
CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012)).
15 Laborers’ Int’l Union of N. Am., Loc. 341 v. Main Bldg. Maint., Inc., 435 F. Supp. 3d
995, 1000 (D. Alaska 2020) (quoting Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912,
923 (9th Cir. 2001)).
16 Docket 22 at 7–8.
17 Id. at 9–12.
18 Id. at 12–13.
19 Id. at 13–15.
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Ehmann v. Wells Fargo Bank, N.A. 	Case No. 3:22-cv-00154-JMK
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liable for unfair trade practices even when there is a contractual relationship.20 	She
suggests that her breach of promise claim is viable because she relied on Wells Fargo’s
promise.21 	Furthermore, she argues that her tort claims survive as a party’s breach of
contract may also give rise to an action in tort when the party’s actions also violate an
independent duty of care.22
A. 	Ms. Ehmann’s UTPA Claims
Five of Ms. Ehmann’s six UTPA claims, which arise under Alaska Stat.
§ 45.50.471(b), fail as a matter of law as her amended complaint does not include
allegations that Wells Fargo engaged in an unfair act or practice. To establish a prima facie
case under the UTPA, a plaintiff must show “(1) that the defendant is engaged in trade or
commerce; and (2) that in the conduct of trade or commerce, an unfair act or practice has
occurred.”23 	A breach of contract, without more, does not constitute an unfair act or
practice under Alaska law.24
These claims, two through six, fail because Ms. Ehmann has not alleged
anything more than a breach of the Safety Deposit Box Lease Agreement, and, therefore,
has not pled the second element of the prima facie case for a UTPA claim. For example,
Ms. Ehmann alleges that Wells Fargo engaged in an unfair and deceptive practice “by
20 Docket 25 at 4–5.
21 Id. at 5.
22 Id. at 6–7.
23 Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1255 (Alaska 2007) (internal
citations and quotation marks omitted).
24 Cf. id. at 1256 n.43 (holding that that a UTPA claim requires proof of something more
than the mere assertion of a good faith but mistaken belief that a contract was valid and citing
cases outside Alaska for the proposition that breach of contract is not in itself an unfair act).
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Ehmann v. Wells Fargo Bank, N.A. 	Case No. 3:22-cv-00154-JMK
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providing no actual protection against unauthorized access to a safe deposit box.”25 	But
the substance of this allegation is simply that Wells Fargo did not abide by the terms of the
lease agreement. 	Ms. Ehmann makes similar allegations in support of her other UTPA
claims.26 Each time, she reiterates that Wells Fargo did not do as it promised in the lease
agreement but does not provide any facts that indicate there was an unfair or deceptive act
beyond a breach of the agreement. As such, Ms. Ehmann’s Amended Complaint does not
include facts sufficient to state the UTPA claims she seeks to assert in claims two through
six.
Ms. Ehmann’s first UTPA claim fails as well. Ms. Ehmann alleges that Wells
Fargo engaged in an unfair practice “by providing no actual follow up or plan for return of
her property from Box #603, as promised” and that this violated the UTPA.27 Alaska Stat.
§ 45.50.471(b)(4) defines an “unfair or deceptive act[] or practice[]” as “representing that
goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits,
or quantities that they do not have . . . .” Wells Fargo’s failure to follow up on Mr. Scott’s
promise does not constitute an unfair act as defined by this provision. Given the allegations
25 Docket 19 at ¶ 13.
26 Id. at ¶¶ 17, 22, 25, 27, 35, 36, 44 (alleging that Wells Fargo engaged in unfair and
deceptive practices by “providing no actual confirmation of authority prior to having allowed
access to Box #603 on or about February 22, 2021,” “providing no intent to supply routine
expected, implied services as lessor of Box #603, such as preventing unauthorized entry to said
Safe Deposit Box,” falsely promising to restrict access to Box #603, “failing to deliver Box #603
according to terms and conditions promised, failing to honor the exclusive authority of lessees,
and falsely representing property in Box #603 would not be accessible without proof of authority
or identity).
27 Id. at ¶ 14.
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in the Amended Complaint, Mr. Scott’s promise cannot fairly be viewed as a representation
that Wells Fargo offers a service with a benefit or quality it does not have.
Accordingly, Ms. Ehmann’s claims one, two, three, four, five, and six are
DISMISSED.
B. 	Ms. Ehmann’s Breach of Promise Claim
Ms. Ehmann’s “breach of promise” claim also fails as a matter of law.
Ms. Ehmann alleges that Michael Scott, the Wells Fargo branch manager, promised
Ms. Ehmann that he would “obtain the return of the property” taken from Box #603.28
Wells Fargo argues that this constituted an unenforceable promise because it
was not supported by any consideration. In her opposition, Ms. Ehmann responds that the
promise is enforceable as she relied upon it.
“Generally, a promise that is not supported by consideration is not legally
enforceable.”29 “To constitute consideration, a performance or a return promise must be
bargained for” and “[a] performance or return promise is bargained for if it is sought by
the promisor in exchange for [their] promise and is given by the promisee in exchange for
that promise.”30
Mr. 	Scott’s 	alleged 	promise 	is 	not 	legally 	enforceable 	as 	it 	lacked
consideration. The Amended Complaint shows that Mr. Scott did not seek performance or
a promise in return for his efforts. 	Rather, he gratuitously offered to obtain the return of
28 Id. at ¶ 51.
29 Roberson v. Manning, 268 P.3d 1090, 1094 (Alaska 2012).
30 Thomas v. Archer, 384 P.3d 791, 798 (Alaska 2016).
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Ms. Ehmann’s property. 	Furthermore, although reliance on a unilateral promise can
sometimes render it enforceable in contract, there is no factual matter in Ms. Ehmann’s
complaint that indicates that she reasonably relied on Mr. Scott’s promise.31 	Her
conclusory and unsupported assertion in her opposition that she relied on his statement is
not sufficient to create an enforceable obligation. Ms. Ehmann’s breach of promise claim
therefore is DISMISSED.
C. 	Ms. Ehmann’s Tort Claims
Finally, 	Wells 	Fargo 	argues 	that 	Ms. 	Ehmann’s 	negligence 	and
misrepresentation claims should be dismissed as they arise from contractual promises.
Ms. Ehmann responds that conduct that violates a contract also may sound in tort.
Generally, “[p]romises set forth in contract must be enforced by an action on
that contract.”32 “However, when a party’s actions violate a general duty of care, its actions
may give rise to an action in tort, even if the violation also breaches a contract.”33
Here, Ms. Ehmann claims that Wells Fargo was negligent because it failed
to confirm the identity of the individual who sought access to Box #603.34 But Wells Fargo
did not owe Ms. Ehmann any independent duty of care to “confirm the authority and
31 See R ESTATEMENT (S ECOND) OF C ONTRACTS § 90 (Am. L. Inst. 1981).
32 Alaska Pac. Assur. Co. v. Collins, 794 P.2d 936, 946 (Alaska 1990), as amended on
denial of reh’g (Aug. 30, 1990).
33 Jarvis v. Ensminger, 134 P.3d 353, 363 (Alaska 2006); see also Galipeau v. Bixby, 476
P.3d 1129, 1137–39 (Alaska 2020) (noting that “[a]n independent tort, by definition, is one that
would exist even if there were no contract” and finding that the defendant owed no duty to the
plaintiffs apart from the contractual duties imposed on it and therefore the plaintiffs could not be
awarded punitive damages based on a tort theory of liability).
34 Docket 19 at ¶ 56. 	Ms. Ehmann’s Amended Complaint contains two paragraphs
numbered 56, one supporting Claim Eight and one supporting Claim Ten. Here, the Court refers
to the paragraph 56 in support of Claim Ten.”
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identity of the individual who sought access” to the Safety Deposit Box.35 In this case, that
duty arises from the lease agreement itself. Ms. Ehmann’s negligence claim thus fails.
Moreover, 	Ms. 	Ehmann 	claims 	that 	Wells 	Fargo 	intentionally
“misrepresented that there are precautions to protect against unauthorized access” to Safety
Deposit boxes.36 	“Alaska law imposes an independent duty to refrain from the tort of
intentional misrepresentation” so a “claim for misrepresentation alleges a breach of a duty
independent of the contract.”37
However, Ms. Ehmann does not allege facts to support the elements of the
tort of intentional misrepresentation: “(1) a false representation of fact, (2) knowledge of
the falsity of the representation, (3) intention to induce reliance, (4) justifiable reliance, and
(5) damages”—as her complaint does not contain facts that suggest Wells Fargo acted with
any intent.38 She alleges “WELLS FARGO BANK, N.A. personnel intended for LINDA
EHMANN to rely on the representations of WELLS FARGO BANK, N.A. personnel, that
her property in Box #603 would be protected against unauthorized access.”39 	This
conclusory assertion is insufficient. As discussed, “[t]hreadbare recitals of the elements of
a cause of action” will not defeat dismissal; a plaintiff must “plead[] factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”40 	Ms. Ehmann’s statement as to Wells Fargo’s intent, without any
35 Id.
36 Id. at ¶ 61. 	The Court treats Ms. Ehmann’s claim as a claim for intentional
misrepresentation in accordance with the title of her claim on page 10 of the Amended Complaint.
37 Jarvis, 134 P.3d at 363.
38 Id.
39 Docket 19 at ¶ 63.
40 Iqbal, 556 U.S. at 678.
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factual allegations that allow the Court to draw an inference that this intent plausibly
existed, is not enough to survive a motion to dismiss. 	Ms. Ehmann’s negligence and
misrepresentation claims are DISMISSED.
IV. 	CONCLUSION
For the reasons stated above, Wells Fargo’s Partial Motion to Dismiss is
GRANTED. 	The Court dismisses claims one, two, three, four, five, six, nine, ten, and
eleven in Ms. Ehmann’s Amended Complaint. Wells Fargo must file an answer regarding
Ms. Ehmann’s two remaining claims.
IT IS SO ORDERED this 11th day of September, 2023, at Anchorage,
Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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