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Steven Nelson Painting, LLC v. Smith

United States District Court, Eighth Circuit

May 28, 2013

Steven Nelson Painting, LLC, a Minnesota corporation; and Steve Nelson, individually, Plaintiffs,
v.
Tomas Claud Smith; U.S. Bank N.A., a National Banking Association; and The Home Depot, Inc., a Delaware corporation, Defendants.

Edward A Zimmerman, Esq., The Business Lawyers, counsel for Plaintiffs.

Charles F. Webber, Esq., Erin L. Hoffman, Esq., and Elizabeth Ann Walker, Esq., Faegre Baker Daniels LLP, counsel for Defendant U.S. Bank, N.A.

MEMORANDUM OPINION AND ORDER

DONOVAN W. FRANK, District Judge.

INTRODUCTION

This matter is before the Court on a Motion to Dismiss and Motion to Strike brought by Defendant U.S. Bank N.A. ("U.S. Bank") (Doc. No. 9). For the reasons set forth below, the Court grants the motion.

BACKGROUND

Plaintiff Steve Nelson ("Nelson"), doing business as Plaintiff Steve Nelson Painting LLC, opened a checking account and entered into a written agreement with U.S. Bank. (Doc. No. 1, Ex. 1, Am. Compl. ¶¶ VI, LXXVI.)[1] In 2007, Nelson agreed to perform repair and remodeling work for homeowner Tomas Claud Smith ("Smith"), and Smith agreed to pay Nelson every two weeks for his time and materials. ( Id. ¶¶ VII, X.) On October 24, 2007, Nelson and Smith visited the Home Depot to rent scaffolding. ( Id. ¶ XII.) Nelson used a check from his U.S. Bank account to cover the deposit. ( Id. ) Nelson wrote the words "for deposit" in the memo line, drew a line through the "$" line, and drew another line in front of the word "Dollars" on the check. ( Id. ¶ XIII.)

Nelson continued to work on Smith's house, but Smith did not pay Nelson and later told Nelson that he could not afford to continue the remodeling project. ( Id. ¶¶ XIX, XXIII.) Nelson alleges that Smith's failure to pay caused overdraft charges to be assessed to his U.S. Bank account. ( Id. ¶ XXIV.)

Nelson did not return the scaffolding secured by his blank check; instead, on January 8, 2008, Smith returned the scaffolding without Nelson's knowledge. ( Id. ¶ XXVII.) The deposit check was given to Smith, who allegedly altered the check and used it to make purchases totaling $337.18 at the Home Depot. ( Id. ¶ XXX.) The payment increased the negative balance in Nelson's U.S. Bank account, which resulted in the imposition of overdraft fees. ( Id. ¶ XXXV.)

Nelson alleges that he learned that the deposit check was cashed and of the negative balance in his U.S. Bank account on or about January 23, 2008. ( Id. ¶ XXXVI.) Nelson alleges that he did not recover from the overdraft status, despite additional deposits. ( Id. ¶ XLIII.) On March 19, 2008, U.S. Bank closed the checking account and referred Nelson's negative balance to collections. ( Id. ¶ XLVI.)

Nelson commenced this lawsuit on or around November 12, 2011. (Doc. No. 1.)[2] In the Amended Complaint, Nelson asserts claims against Smith, the Home Depot, and U.S. Bank. The present motion only concerns the claims against U.S. Bank: breach of contract (Count Eleven), breach of fiduciary duty (Count Twelve), usury (Count Thirteen), injunctive relief (Count Fourteen), attorney fees (Count Fifteen), and punitive damages (Count Sixteen). Nelson has since withdrawn Counts Twelve, Fifteen, and Sixteen, and asks the Court to strike those counts from the Amended Complaint. (Doc. No. 18 at 1.) The Court hereby strikes those counts, and therefore, the only claims presently before the Court are the claims against U.S. Bank for breach of contract (Count Eleven), usury (Count Thirteen), and injunctive relief (Count Fourteen).[3]

DISCUSSION

I. Motion to Dismiss Standard

In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all reasonable inferences from those facts in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). In doing so, however, a court need not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions drawn by the pleader from the facts alleged, Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). A court may consider the complaint, matters of public record, orders, materials embraced by the ...


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