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                                                                        [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                               ________________________

                                      No. 14-15297
                                ________________________

                            D.C. Docket No. 9:14-cv-80321-BB



RAYMOND AKIKI, JUDITH AKIKI,

                                                                          Plaintiffs-Appellants,

                                              versus

BANK OF AMERICA, N.A.,
BANK OF AMERICA CORPORATION,
GREENTREE SERVICING LLC,
FANNIE MAE,

                                                                        Defendants-Appellees.

                                ________________________

                       Appeal from the United States District Court
                           for the Southern District of Florida
                             ________________________

                                     (September 22, 2015)

Before WILLIAM PRYOR, JULIE CARNES, and SILER, ∗ Circuit Judges.

∗
  Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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JULIE CARNES, Circuit Judge:

       This appeal comes to us following the district court’s dismissal with

prejudice of Plaintiffs Raymond and Judith Akiki’s Second Amended Complaint.

Upon review of the record and the parties’ briefs, and with the benefit of oral

argument, we AFFIRM for the reasons set out below.

I.     BACKGROUND 1

       On February 27, 2008, Plaintiffs obtained from defendant Bank of America,

N.A. a “no documentation” loan for the principal sum of $96,000 and a home

equity line of credit with a $20,000 limit. To secure the former instrument,

Plaintiffs granted Bank of America a mortgage on a property in St. Louis,

Missouri.

       Plaintiffs claim that, from the inception of their loan, they experienced

“constant accounting and financial issues with” Bank of America, including the

bank’s “[holding] back payments from being timely receipted and applied towards

the loan without reason” and its misapplication of other payments that were timely

made. Two allegations in particular form Plaintiffs’ primary grievances about the

administration of their loan. First, Plaintiffs claim that, in July 2012, Bank of




1
  We derive the pertinent facts from Plaintiffs’ Second Amended Complaint. We assume these
facts to be true and construe them in the light most favorable to Plaintiffs.

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America insisted upon creating an escrow account for the payment of real estate

taxes on the mortgaged St. Louis property, despite Plaintiffs being current on such

taxes and not otherwise in default. Plaintiffs frequently complained to Bank of

America about the escrow account and the allocation of loan payments to “several

artificially created sub accounts,” but to no avail: their payments were not fully

applied to the interest and principal due on their loan, which Bank of America

eventually declared to be in default as a result. Second, Plaintiffs claim that their

loan documents provide for interest to accrue at a rate of 2.34% per annum, but

that Bank of America actually charged them interest at a rate of 5.14% per annum. 2

       In addition to the above, and apart from the administration of their loan,

Plaintiffs also allege that Defendants aggressively solicited business from them,

despite their lack of creditworthiness for the financial services being offered. In

short, Plaintiffs opine that Defendants departed from traditional, conservative

banking practices by offering them an “unlimited battalion” of extraordinary

services, regardless of their need or ability to afford these services, simply to

further Defendants’ own “profit aggrandizement.”


2
  Plaintiffs’ loan was transferred to defendant Green Tree Servicing, Inc. on January 1, 2013,
while their home equity line of credit remains with Bank of America. Where Plaintiffs do not
otherwise allege that the defendants, collectively, engaged in wrongdoing, they claim that Green
Tree Servicing, Bank of America Corporation, Fannie Mae, and the Federal Housing Finance
Authority “confirmed and ratified” the actions of the infringing party, and are thus also liable for
such actions. For ease of reference, our analysis below refers collectively to “Defendants.”

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      Based on the above alleged conduct by Defendants, Plaintiffs filed suit in

federal court, alleging violations of the Bank Holding Company Act, National

Bank Act, and Florida’s Deceptive and Unfair Trade Practices Act, as well as

claims for breach of fiduciary duty, gross negligence, unjust enrichment, and

equitable estoppel. In response to Defendants’ Motion to Dismiss the complaint

as, among other things, an impermissible “shotgun pleading,” Plaintiffs requested

leave to amend “to further delineate the facts and background to support their

underlying legal predicates,” which request the district court granted.

      Other than dropping their Florida Deceptive and Unfair Trade Practices Act

count, Plaintiffs’ Amended Complaint did not otherwise greatly revise their factual

allegations, so Defendants “essentially re-filed their initial motion to dismiss, []

asserting that even with Plaintiffs’ amendments, the pleading still warranted

dismissal.” The district court agreed, concluding that the Amended Complaint

made “imprecise, diffuse, and repetitive” allegations and failed to comport with

Federal Rules of Civil Procedure 8(d)(1) and 10(b). For that reason, it granted

Defendants’ motion to dismiss, but dismissed without prejudice in order to allow

Plaintiffs one more chance to revive their deficient pleadings. Further, to aid

Plaintiffs’ future efforts to comply with federal pleading requirements, the court

addressed the merits of Plaintiffs’ individual claims, instructing them on the



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elements of each asserted cause of action and noting where their earlier allegations

had fallen short.

      Thereafter, Plaintiffs took the court up on its offer to permit yet another

amended complaint, and Plaintiffs filed their Second Amended Complaint. Yet,

they still did not heed the district court’s directives as to how to fix their earlier

pleadings’ shortcomings. Specifically, although Plaintiffs reduced their named

causes of action by three—now asserting only claims for violations of the Bank

Holding Company Act and National Banking Act, as well as for breach of

fiduciary duty, and gross negligence—they nonetheless repeated the same deficient

substantive allegations that had prompted the district court’s earlier tutorial.

Namely, they averred that Defendants (1) impermissibly created an escrow account

for the payment of real estate taxes when Plaintiffs had independently paid those

taxes and were not in default on their loan, (2) charged Plaintiffs a rate of interest

in excess of that provided by their loan documents, and (3) aggressively solicited

Plaintiffs for financial instruments and services regardless of their creditworthiness

for these products.

      Unsurprisingly, this complaint triggered yet another motion to dismiss,

which the district court granted—this time with prejudice. The court found that

Plaintiffs’ Bank Holding Company Act claim failed because they did not allege

facts from which one could infer that the complained-of escrow account was

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unusual or anticompetitive or that Defendants conditioned the granting of a loan to

Plaintiffs upon its creation: facts that were necessary to give rise to the claim

asserted by Plaintiffs under this statute. The court held that their National Bank

Act claim failed because (1) Plaintiffs did not comply with the Act’s two-year

statute of limitations and (2) they did not allege that Defendants charged a usurious

interest rate, instead only averring that the interest rate charged was higher than

that provided by the loan documents. This latter allegation, the court concluded,

was insufficient to create a claim under the National Bank Act. Finally, the court

held that Plaintiffs’ breach of fiduciary duty and gross negligence claims failed

because Plaintiffs did not allege that they had succumbed to Defendants’

aggressive solicitations, and no fiduciary relationship had been created or

breached. Arguing that the district court erred in dismissing this Second Amended

Complaint, Plaintiffs have filed the present appeal.

II.   STANDARD OF REVIEW

      “We review de novo a district judge’s granting a motion to dismiss for

failure to state a claim under Rule 12(b)(6), accept the complaint allegations as

true, and construe them most favorably to the plaintiff.” Wiersum v. U.S. Bank,

N.A., 785 F.3d 483, 485 (11th Cir. 2015) (citing Butler v. Sheriff of Palm Beach

Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012)). We similarly review de novo “a



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district judge’s interpretation of a statute.” Id. (citing Reese v. Ellis, Painter,

Ratterree & Adams, LLP, 678 F.3d 1211, 1215 (11th Cir. 2012)).

III.   ANALYSIS

       Plaintiffs’ Second Amended Complaint asserts four causes of action:

violation of the Bank Holding Company Act, 12 U.S.C. § 1972; violation of the

National Bank Act, 12 U.S.C. §§ 85–86; breach of fiduciary duty; and gross

negligence. We consider the sufficiency of each in turn.

       A.    Plaintiffs’ Bank Holding Company Act Claim

       In 1970, Congress amended the Bank Holding Company Act, 12 U.S.C.

§§ 1841 et seq., by adding provisions that prohibit anticompetitive tying

arrangements, id. §§ 1971 et seq. Whereas the original Act sought to regulate the

power of bank holding companies “so as to prevent a small number of powerful

banks from dominating commerce . . . the 1970 Antitying Amendment [] intended

to reach anticompetitive practices of even smaller banks, which notwithstanding

their comparative size, were able to exert economic power over businesses because

of their control over credit.” Parsons Steel, Inc. v. First Ala. Bank of Montgomery,

N.A., 679 F.2d 242, 244–45 (11th Cir. 1982).

       In relevant part, the Antitying Amendment provides that

       [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

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      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). Here, Plaintiffs argue that Defendants forced on them an

illegal tying arrangement when the latter insisted on and ultimately created an

escrow account for the payment of real estate taxes, even though Plaintiffs had

previously paid those taxes on their own and Plaintiffs were not otherwise in

default on their loan obligations. Importantly though, Plaintiffs make no allegation

that Defendants conditioned the grant of a loan to them in 2008 on the creation of

an escrow account four years later, and for that reason they have failed to state a

claim for an illegal tying arrangement in violation of the Antitying Amendment.

Cf. Bass v. Boston Five Cent Sav. Bank, 478 F. Supp. 741, 743, 746–47 (D. Mass.

1979) (describing a loan agreement that conditioned the extension of credit on the

establishment of an escrow account for the payment of taxes, and dismissing in

part, on other grounds, plaintiffs’ related § 1972 and Sherman Act antitying

claims).

      A tying arrangement conditions a consumer’s purchase of a desired product

on his agreement to purchase a second product that he might not want. McGee v.

First Fed. Sav. & Loan Ass’n of Brunswick, 761 F.2d 647, 648 (11th Cir. 1985);

Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1502 (11th Cir. 1985).

For example, where a grocer refuses to sell flour to a consumer unless he also

purchases sugar, a tying arrangement exists. N. Pac. Ry. Co. v. United States, 356
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U.S. 1, 6–7 (1958). In the context of the Bank Holding Company Act, we have

described an illegal tying arrangement as occurring, for example, when a bank

refuses to extend credit to a borrower unless the latter also agrees to purchase a

separate, unrelated bank service; conditions credit on the borrower providing to it a

specific product or service unrelated to the extension of credit; or conditions credit

on the borrower agreeing not to engage in a transaction with the bank’s

competitors. Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342, 1346 (11th

Cir. 1997) (adopting the opinion of the district court).

      Clearly, no similar arrangement exists here. Plaintiffs had obtained their

desired loan long before Defendants opened the undesired escrow account. In fact,

Plaintiffs don’t even try to argue that the former event was contingent upon the

latter, or otherwise occurred in anticipation of it. Put another way, Plaintiffs do not

claim that Defendants required them, in 2012, to accept an escrow account in order

to obtain, in 2008, a loan. Indeed, such a claim is not possible in a temporal sense

because, absent some time travel mechanism, a person’s reluctant agreement to a

demand in 2012 can never be said to have been given for the purpose of receiving

a benefit that had already been conferred four years before. Nor do Plaintiffs claim

that Defendants forced their acquiescence to the undesired escrow account by




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threatening alteration of the terms or conditions of their loan, such as by increasing

the rate of interest.3

       Consequently, Plaintiffs having failed to sufficiently plead that Defendants

conditioned an extension of credit to them on their agreement to obtain an

additional service, we conclude that the district court correctly dismissed their

claim for violation of the Bank Holding Company Act. See Parsons Steel, 679

F.2d at 244–46 (affirming judgment notwithstanding the verdict for plaintiffs’

failure to establish a tying arrangement); see also Highland Capital, Inc. v.

Franklin Nat’l Bank, 350 F.3d 558, 567–68 (6th Cir. 2003) (affirming summary

judgment because plaintiff did not prove that “the purchase of the tied product or

service was a mandatory condition or requirement of obtaining a loan from the

lender.”).

       Moreover, even if Plaintiffs could surmount the first hurdle described above,

they would falter on the next. A litigant who seeks to assert a claim for violation

of the Antitying Amendment must allege that the “condition placed on the loan is

(1) an unusual banking practice; (2) an anticompetitive tying arrangement; and (3)


3
  The use of an escrow account to pay real estate taxes in the event of a default was a condition
of Plaintiffs’ loan at its inception. As discussed infra, Plaintiffs argue the triggering event—a
default—had not yet occurred, and therefore the escrow account Defendants created constituted a
new condition imposed upon their loan. Such action, however, would give rise to a breach of
contract claim, not a claim for an illegal tying arrangement in violation of the Bank Holding
Company Act.

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a practice that benefits the bank.” Cohen v. United Am. Bank of Cent. Fla., 83 F.3d

1347, 1350 (11th Cir. 1996) (citing Parsons Steel, Inc., 679 F.2d at 245; Palermo

v. First Nat’l Bank & Trust Co. of Okla. City, 894 F.2d 363, 368 (10th Cir. 1990);

and Sanders v. First Nat’l Bank & Trust Co. in Great Bend, 936 F.2d 273, 278 (6th

Cir. 1991)). Here, not only do Plaintiffs fail to allege that the creation of an escrow

account for the payment of real estate taxes on a borrower’s mortgaged property is

an unusual banking practice, they concede it is “typical” and “standard” in the

industry, appears in their own loan documents, and even falls under an exception to

the Antitying Amendment. 4

         To avoid the dismissal of their Bank Holding Company Act count on the

above ground, Plaintiffs argue that Defendants’ creation of an escrow account was

unusual in this case because, while their loan documents called for that action if

Plaintiffs committed a default, no default occurred. But even if factually accurate,

Plaintiffs’ argument yields only a simple breach of contract claim, which cause of

action Plaintiffs did not plead. A breach of contract claim cannot be contorted into

a claim under the Antitying Amendment, particularly when the practice that is the

subject of the alleged breach is standard in the banking industry. Indeed, one of

Congress’s aims in passing the Amendment was to avoid “‘interfer[ing] with the

conduct of appropriate traditional banking practices[.]’” Parsons Steel, Inc., 679
4
    We make no judgment on the accuracy of the latter claim.

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F.2d at 245 (quoting Sen. Rep. No. 91–1084, 91st Cong., 2d Sess., reprinted in

U.S. Code Cong. & Ad. News 5519, 5535 (1970)); see also Swerdloff v. Miami

Nat’l Bank, 584 F.2d 54, 59 (5th Cir. 1978) (“It is sufficient to allege that the bank

required a customer to do an act not related to nor usually provided in connection

with a loan.”) (emphasis added) and 1 Grant S. Nelson, Real Estate Fin. Law §

4:17 (6th ed. 2014) (stating that the use of escrow accounts for the payment of

taxes and insurance became “widespread” after the “depression experience of the

1930’s” and expanded in light of related Federal Housing Administration

guidelines). Obviously, even for federally-chartered banks, not every wrong

begets a federal cause of action. For all the above reasons, we conclude that the

district court correctly dismissed Plaintiffs’ claim under the Bank Holding

Company Act.

      B.     Plaintiffs’ National Bank Act Claim

      Generally, the National Bank Act forbids usurious interest, meaning that a

bank cannot charge interest at a rate greater than is permitted by the law of the

state, territory, or district in which it is located. 12 U.S.C. §§ 85–86; see also 12

C.F.R. § 7.4001. Where no local restriction exists, the National Bank Act sets the

threshold for usurious interest at the greater of “7 per centum, or 1 per centum in

excess of the discount rate on ninety-day commercial paper in effect at the Federal

reserve bank in the Federal reserve district where” the lender is located. 12 U.S.C.

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§ 85. A plaintiff who seeks to bring an action for violations of the above

provisions must do so within two years of the allegedly usurious transaction. Id.

§ 86.

        Here, Plaintiffs claim that Bank of America violated the National Bank Act

by charging them interest at a rate of 5.14% per annum, even though the relevant

loan documents provided for a rate of interest at 2.34% per annum, and by

engaging in “misappropriations, improper escrows, improper accounting, hold-

backs, and other accounting discrepancies.” The district court dismissed this claim

upon finding that Plaintiffs failed to demonstrate that the complained-of-

transactions occurred within the National Bank Act’s two-year limitations period,

id., and because the Second Amended Complaint did not “indicate how the interest

rates assessed were usurious in nature,” rather than simply a breach of the loan

documents.

        In their initial notice of appeal, Plaintiffs identified as erroneous the district

court’s above conclusions, but they have not offered any argument on that point in

their brief to this Court. Consequently, Plaintiffs have abandoned any objection

that they might otherwise have made about the dismissal of their National Bank

Act claim, meaning that the district court’s decision on this claim is therefore

affirmed. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir.

2004) (“[T]he law is by now well settled in this Circuit that a legal claim or

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argument that has not been briefed before the court is deemed abandoned and its

merits will not be addressed.”) and Little v. T-Mobile USA, Inc., 691 F.3d 1302,

1306 (11th Cir. 2012) (collecting cases).

      C.     Plaintiffs’ Breach of Fiduciary Duty and Gross Negligence Claims

      Under Florida law, claims for both breach of fiduciary duty and gross

negligence require as their first element that the defendant owe the plaintiff some

legal duty. Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002); Lamm v. State St.

Bank & Trust, 749 F.3d 938, 947 (11th Cir. 2014) (quoting Estate of Rotell ex rel.

Rotell v. Kuehnle, 38 So. 3d 783, 789 (Fla. 2d Dist. Ct. App. 2010)). One

circumstance in which such duties arise is when a fiduciary relationship exists

between the parties. A fiduciary relationship can be either express or implied.

Maxwell v. First United Bank, 782 So. 2d 931, 933 (Fla. 4th Dist. Ct. App. 2001).

The former derives from a contractual obligation; the latter “is based on the

circumstances surrounding the transaction and the relationship of the parties.” Id.

      In the present case, Plaintiffs assert that Defendants became their “financing

‘partner[s]’” by extending them a loan in 2008 and thereafter “aggressively

solicit[ing them] to borrow more and more money.” From this premise, Plaintiffs

infer that Defendants became their fiduciary, and were obliged to fulfill the duties

attendant to that status. Plaintiffs further argue that Defendants breached these

fiduciary duties by “approving participation in placing [Plaintiffs] wrongfully in

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default, when no such default existed, and intentionally instituting collection and

threatening foreclosure proceedings, when then in violation of federal and state

laws and regulations.”

      Plaintiffs’ characterization of their relationship with a lending institution is

way off the mark. “Generally, the relationship between a bank and its borrower is

that of creditor to debtor, in which [the] parties engage in arms-length transactions,

and the bank owes no fiduciary responsibilities.” Capital Bank v. MVB, Inc., 644

So. 2d 515, 518 (Fla. 3d Dist Ct. App. 1994); see also Maxwell, 782 So. 2d at 934

and Metcalf v. Leedy, Wheeler & Co., 191 So. 690, 692–93 (Fla. 1939) (holding

that defendants owed plaintiff no fiduciary or special duties in arm’s-length

transaction). Likewise, in interpreting Florida law, we have noted that, “[u]nder

Florida law, it is clear that a lender does not ordinarily owe fiduciary duties to its

borrower.” Motorcity of Jacksonville, Ltd. v. Se. Bank N.A., 83 F.3d 1317, 1339

(11th Cir. 1996) (en banc), vacated, 519 U.S. 1087 (1997), reinstated, 120 F.3d

1140, 1145 (11th Cir. 1997) (en banc).

      That said, a fiduciary relationship could potentially arise in special

circumstances “where ‘the bank knows or has reason to know that the customer is

placing trust and confidence in the bank and is relying on the bank so to counsel

and inform him.’” Building Educ. Corp. v. Ocean Bank, 982 So. 2d 37, 41 (Fla. 3d

Dist. Ct. App. 2008) (quoting Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842

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So. 2d 204, 208 (Fla. 3d Dist. Ct. App. 2003)); see also Barnett Bank of W. Fla. v.

Hooper, 498 So. 2d 923, 925–26 (Fla. 1986). Such circumstances typically exist

where a bank “(1) takes on extra services for a customer, (2) receives any greater

economic benefit than from a typical transaction, or (3) exercises extensive

control.” Capital Bank, 644 So. 2d at 519 (citing Tokarz v. Frontier Fed. Sav. &

Loan Ass’n, 33 Wash. App. 456, 462 (1982)).

      Take, for example, the interactions between lender and borrower in Capital

Bank. There, by purposefully creating a familial relationship of trust and

confidence, a bank was found to owe fiduciary duties to a customer whom it then

intentionally pressured into purchasing the malfunctioning assets of another

customer that was on the verge of bankruptcy, just so the latter could pay back the

debt it owed the bank. Id. at 519–21. Likewise, in First National Bank and Trust

Company of Treasurer Coast v. Pack, a lender was found to owe its borrowers

fiduciary duties when it acted as a conduit between the borrowers and a

construction company building their house; assured the borrowers its

representative would be present at the final walk-through and that any defects

would be corrected; and advised the borrowers that it was unnecessary for them to

retain an independent attorney to guide them through closing. 789 So. 2d 411,

415–16 (Fla. 4th Dist. Ct. App. 2001).



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      Plaintiffs’ relationship with Defendants bears no similarity to the facts found

in the above Florida cases. Plaintiffs offer no clue as to how their 2008 interaction

with Defendants, in which they obtained the loan and home equity line of credit at

issue, was anything but an ordinary commercial transaction. See Capital Bank,

644 So. 2d at 521. They do not allege that Defendants provided them with

counseling services, assumed additional roles, established a confidential

relationship, or in any way fostered or encouraged an environment of trust and

counseling—let alone that Plaintiffs acted in reliance on any such perceived

relationship. Contra Pack, 789 So. 2d at 415–16; Capital Bank, 644 So. 2d at

520–21; and Barnett Bank, 498 So. 2d at 925–26.

      Similarly, Plaintiffs complain about aggressive sales tactics in which

Defendants allegedly engaged. Yet, Plaintiffs never claim that they succumbed to

those tactics by actually purchasing any of the “extraordinary” banking services

being offered. Cf. Capital Bank, 644 So. 2d at 519 (describing how the borrower

relented to the lender’s urging to enter into a series of transactions with another of

its customers) and Ocean Bank, 982 So. 2d at 40 (holding that bank owed no

fiduciary duties to potential customer). Rather, their Second Amended Complaint

merely enumerates a number of available products offered by Defendants, and the

sales tactics used by the latter to market these products. That Defendants may have

tried to sell to Plaintiffs products that it would have been imprudent for Plaintiffs

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to purchase does not transform an earlier and independent arm’s-length transaction

into a fiduciary relationship. Nor could there be any breach of these imagined

fiduciary duties because Plaintiffs never took the bait. Therefore, we conclude that

the district court correctly dismissed Plaintiffs’ claims for breach of fiduciary duty

and gross negligence.

IV.   CONCLUSION

      For the above reasons, we AFFIRM the district court’s order granting

Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint.




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