          Case: 14-10952   Date Filed: 03/26/2015   Page: 1 of 9


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-10952
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:13-cv-21127-MGC



ARBITRAJES FINANCIEROS, S.A.,
a Venezuelan corporation,

                                                          Plaintiff-Appellant,


                                 versus


BANK OF AMERICA, N.A.,
a national banking association,
ROSEMONT FINANCE CORPORATION,
a dissolved Florida corporation,
                                                       Defendants-Appellees.




                     ________________________

                           No. 14-11167
                       Non-Argument Calendar
                     ________________________
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                      D.C. Docket No. 1:12-cv-21367-MGC



INVIERTAL FINANCIAL MANAGERS, S.A.,
a Panamanian corporation,

                                                                 Plaintiff-Appellant,


                                        versus


BANK OF AMERICA, N.A.,
a national banking association,

                                                                Defendant-Appellee,

ROSEMONT FINANCE CORPORATION,
a dissolved Florida corporation,

                                                                          Defendant.

                          ________________________

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

                                  (March 26, 2015)

Before MARTIN, JULIE CARNES and FAY, Circuit Judges.

PER CURIAM:

      Arbitrajes Financieros, S.A, and Inviertal Financial Managers, S.A., appeal

the district court’s dismissal of their complaints seeking damages against Bank of

America, N.A. (BANA). After careful consideration of the parties’ briefs, we

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affirm the district court’s order dismissing appellants’ negligence and Florida

Uniform Commercial Code claims because appellants have not established that

they had a fiduciary relationship with BANA. We also affirm the district court’s

dismissal of the aiding-and-abetting claims, because appellants do not allege facts

which plausibly suggest that BANA had actual knowledge of Rosemont’s breach

of fiduciary duty.

                                   I. Background

      Appellants are foreign bond traders that specialize in the sale of Venezuelan

Bolivar bonds, converting the proceeds into United States currency. Under state

and federal guidelines, certain licenses and registrations are required to hold U.S.

bank accounts. Without U.S. accounts, foreign companies like appellants must

obtain the assistance of a licensed and registered fund transmitter to conduct their

business. To that end, appellants entered into agreements with Rosemont Finance

Corporation, a money transmission company. Rosemont represented to appellants

that it had an ongoing relationship with BANA under which it had created accounts

for other bond trading companies. Rosemont opened BANA bank accounts on

behalf of Arbitrajes and Inviertal, in each case signing a “standard deposit

agreement” that set forth the terms between Rosemont (the only named account

holder) and BANA.




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          In March 2009, the United States Government seized both accounts as part

of a money-laundering investigation. 1 Appellants entered into settlements with the

Department of Justice, by which they agreed to forfeit a portion of funds that were

held in the BANA accounts. This was because neither appellants nor Rosemont

had the proper licenses or registration to hold the accounts.

          In virtually identical actions, appellants sued BANA and Rosemont to

recover their forfeited assets.2 Appellants seek to hold BANA liable for

Rosemont’s fraudulent actions, asserting claims for negligence, violation of the

UCC, and aiding and abetting Rosemont’s breach of fiduciary duty. After

permitting both appellants to amend their complaints, the district court granted

BANA’s motions to dismiss with prejudice because appellants failed as a matter of

law to state any claim for relief against BANA. Inviertal filed a Motion to Alter

Judgment or, in the Alternative, for Leave to File Second Amended Complaint,

which the district court denied as futile. Appellants timely appealed.

                                       II. Negligence Claims

          Appellants first challenge the district court’s dismissal of their negligence

claims. To succeed, appellants must plead facts sufficient to establish that (1)

BANA owed them a duty of care; (2) BANA breached that duty; (3) the breach

caused their injury; and (4) they suffered damages. See Miles v. Naval Aviation

1
    Rosemont’s President later pleaded guilty to money laundering.
2
    Appellants allege diversity jurisdiction, and Florida law governs.
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Museum Found., 289 F.3d 715, 722 (11th Cir. 2002). Appellants claimed that

BANA’s duty of care required it to “verify that all licensees and registrations were

up to date.” Under Florida law, a bank does not have a fiduciary relationship with

its standard deposit account customers, but instead owes only a duty of ordinary

care in arms-length transactions. See First Nat’l Bank and Trust Co. of the

Treasurer Coast v. Pack, 789 So. 2d 411, 414 (Fla. 4th DCA 2001); Maxwell v.

First United Bank, 782 So. 2d 931, 934 (Fla. 4th DCA 2001). This ordinary duty

does not require BANA to act for the benefit or protection of appellants, or to

disclose facts that appellants could have discovered through their own diligence.

See Maxwell, 782 So. 2d at 934. Thus, under the duty of ordinary care, BANA

would not be required to verify Rosemont’s licenses and registration.

      Appellants insist they had a fiduciary relationship with BANA, which

required BANA to satisfy a heightened duty of care. Fiduciary relationships can

be created expressly or impliedly under Florida law. Capital Bank v. MVB, Inc.,

644 So. 2d 515, 518 (Fla. 3d DCA 1994). Implied fiduciary relationships can arise

“when ‘confidence is reposed by one party and a trust accepted by the other.’” Id.

(quoting Dale v. Jennings, 90 So. 175, 179 (Fla. 1925)). In considering whether a

fiduciary relationship exists, courts may also consider whether the bank “1) takes

on extra services for a customer, 2) receives any greater economic benefit than




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from a typical transaction, or 3) exercises extensive control.” Capital Bank, 644

So. 2d at 519.

      Appellants do not claim to have an express fiduciary relationship with

BANA. Indeed, the account agreements explicitly disclaim such a relationship:

“[O]ur deposit relationship with you is that of debtor and creditor. This Agreement

and the deposit relationship do not create a fiduciary, quasi-fiduciary or special

relationship between us.”

      Neither did appellants adequately plead facts that show an implied

relationship. To support their claim that extra services were provided, appellants

point to specialized technology that BANA provided to allow appellants to make

wire transfers more quickly than other customers. Yet the case appellants rely

upon to support the idea that BANA took on “extra services” seems to require

services that transform the relationship to “exceed [the role] of a lender,” for

example by offering advice or directly orchestrating non-banking transactions.

Capital Bank, 644 So. 2d at 520. BANA’s specialized technology does not reach

this threshold.

      To support their claim that BANA received a “greater economic benefit”

that created a fiduciary relationship, appellants argue that BANA collected extra

fees by retaining the interest on the account deposits instead of distributing it to

appellants. However, during the time these account were on deposit, federal law


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prohibited BANA from paying interest on appellants’ accounts. See 12 C.F.R. §

217.3 (“Regulation Q”) (repealed July 21, 2011). Thus, the “extra” fees appellants

allege BANA received were in fact mandated by law.

      Though appellants allege that they placed their trust in BANA, they point to

no facts that show BANA, in turn, accepted appellants’ confidence and trust.

Appellants highlight certain conversations between BANA and Rosemont about

the accounts, but they point to no conversations sufficient to create a fiduciary

relationship between appellants and BANA. Based on this lack of a fiduciary

relationship with BANA, the district court rightly rejected appellants’ negligence

claims.

                                  III. UCC Claims

      Count II of appellants’ complaints alleges that BANA violated Article 4 of

Florida’s Uniform Commercial Code by not acting in good faith and exercising

ordinary care with respect to the item it handles. Fla. Stat. § 674.103(1). Their

UCC claims rely on the idea that BANA’s duty of “ordinary care” encompasses an

obligation to make sure that Rosemont had the proper licenses and registrations

needed to serve as a registered fund transmitter for appellants. However, Florida

does not impose such a duty on banks for their non-fiduciary, ordinary customer




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transactions. 3 See Maxwell, 782 So. 2d at 934. Appellants’ UCC claims were

therefore properly dismissed as well.

                              IV. Aider and Abettor Liability

       Under Florida law, appellants must establish four elements to succeed on

their claim that BANA aided and abetted Rosemont’s breach of fiduciary duty: (1)

Rosemont owed a fiduciary duty to appellants; (2) which Rosemont breached; (3)

BANA knew about Rosemont’s breach; and (4) it substantially assisted with

Rosemont’s breach. See In re Caribbean K Line, Ltd., 288 B.R. 908, 919 (S.D.

Fla. 2002); Ft. Myers Dev. Corp. v. J.W. McWilliams Co., 122 So. 264, 268 (Fla.

1929). The district court dismissed appellants’ claims because they could not

establish that BANA knew of any alleged breach, much less assisted with it.

       Because each of these elements is required, and the failure of any one of

them is decisive, we address only the third element requiring BANA’s knowledge

of Rosemont’s breach. Appellants allege only that BANA “had knowledge” of

Rosemont’s breaches of fiduciary duty—including Rosemont’s representation to

appellants that it had the proper licenses and registrations; Rosemont’s telling

appellants they did not need to register or get licenses; and Rosemont’s failing to

inform appellants that such licenses and registrations were required. In support of

this allegation, appellants allege that Rosemont “advised [BANA] that it

3
 We need not reach the question of whether appellants were customers of BANA, or whether
BANA would have owed appellants this duty of care in the context of a fiduciary relationship.
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committed the aforementioned acts prior to . . . open[ing] the [appellants’]

[a]ccount[s].” At the same time, however, appellants’ complaints allege that

Rosemont’s former president “advised [BANA] that Rosemont was going to obtain

the appropriate money transmission license and registration . . . .” Of course

BANA could not have known about the breach if Rosemont hid its fraud by saying

it would get the registrations and licenses. Similar to the facts addressed by this

court in Lawrence v. Bank of America, N.A., 455 Fed. App’x 904, 907 (11th Cir.

2012) (per curiam), appellants point to no other facts showing that BANA had

actual knowledge of Rosemont’s actions. Because appellants failed to sufficiently

allege BANA had actual knowledge of Rosemont’s breach, the district court

properly dismissed their aiding and abetting claims as well.

      AFFIRMED.




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