Opinion
Case No. 1:19-cv-25191-KMM
2021-03-29
Jesus Alonso ALVAREZ RODRIGUEZ, et al., Plaintiffs, v. BRANCH BANKING AND TRUST CO., et al., Defendants.
Maria Lucia Larrabure, Sanchez Vadillo, LLP, Doral, FL, Roberto Villasante, Coral Gables, FL, for Plaintiffs. David Stockton Hendrix, Gray Robinson, PA, Tampa, FL, Veronica Andrea Meza, GrayRobinson, P.A., Miami, FL, for Defendants. Guillermo Gamboa, Kissimmee, FL, pro se.
Maria Lucia Larrabure, Sanchez Vadillo, LLP, Doral, FL, Roberto Villasante, Coral Gables, FL, for Plaintiffs.
David Stockton Hendrix, Gray Robinson, PA, Tampa, FL, Veronica Andrea Meza, GrayRobinson, P.A., Miami, FL, for Defendants.
Guillermo Gamboa, Kissimmee, FL, pro se.
OMNIBUS ORDER
K. MICHAEL MOORE, CHIEF UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Plaintiffs Jesus Alonso Alvarez Rodriguez, Alixon Lourdes Colombo De Alvarez, Mariana Alvarez Colombo, Maria Laura Alvarez Colombo, Inversiones La Mariana C.A., ACCD, C.A., and Alvarez & Parilli Despacho De Abogados’ (collectively, "Plaintiffs") Motion for Summary Judgment as to Count II of the Fourth Amended Complaint ("Pls.’ Mot.") (ECF No. 82) and Defendant Branch Banking and Trust Company's ("BB&T" or "Defendant") Motion for Summary Judgment ("Def.’s Mot.") (ECF No. 101). The Parties responded to the others’ Motion. See Defendant's Response in Opposition to Plaintiffs’ Partial Motion for Summary Judgment as to Count II of Fourth Amended Complaint ("Def.’s Resp.") (ECF No. 99); Plaintiffs’ Response to Defendant's Motion for Summary Judgment ("Pls.’ Resp.") (ECF No. 113). The Parties also filed replies. See Plaintiffs’ Reply to Defendant's Response to Plaintiff's Motion for Summary Judgment ("Pls.’ Reply") (ECF No. 109); Defendant's Reply in Support of Motion for Summary Judgment ("Def.’s Reply") (ECF No. 118). The Motions are now ripe for review.
The undisputed facts are taken from Plaintiffs’ Statement of Undisputed Material Facts, ("Pls.’ 56.1") (ECF No. 83), Defendant's Statement of Material Facts In Response to Plaintiffs’ Statement of Undisputed Material Facts, ("Def.’s Resp. 56.1") (ECF No. 100), Defendant's Statement of Undisputed Material Facts, ("Def.’s 56.1") (ECF No. 102), Plaintiffs’ Response to BB & T's Statement of Material Facts, ("Pls.’ Resp. 56.1") (ECF No. 112), and a review of the corresponding record citations and exhibits.
Plaintiffs Jesus Alonso Alvarez Rodriguez ("Alvarez") and Alixon Lourdes Colombo De Alvarez ("Alixon"), along with their daughters, Plaintiffs Mariana Alvarez Colombo ("Colombo") and Maria Laura Alvarez Colombo ("Maria Laura"), are Venezuelan citizens. ("Fourth Am. Compl.") (ECF No. 50) ¶¶ 1–5. Plaintiffs Inversiones La Mariana C.A. ("Inversiones") and ACCD, C.A. ("ACCD") are Venezuelan corporations, and Plaintiff Alvarez & Parilli Despacho De Abogados’ ("Alvarez & Parilli") is a Venezuelan-based law firm. Id. ¶¶ 6–14. Alvarez and Alixon are the sole owners and principals of Inversiones and have sole control of its bank accounts. Id. ¶¶ 7–8. Alixon owns ACCD with one other partner—who is not a party to the instant action—but Alvarez, Alixon, Colombo, and Maria Laura are all signatories of ACCD's bank accounts. Id. ¶¶ 10–11. Finally, Alvarez is one of the law partners of Alvarez & Parilli, "[h]owever, Alvarez is the only active partner and decision maker at the law firm." Id. ¶¶ 13–14. Both Alvarez and Alixon have authority over the law firm's bank accounts. Id. ¶ 15.
Between January 23, 2012 and July 12, 2012, Plaintiffs opened ten (10) bank accounts with Defendant—four (4) personal deposit accounts and six (6) business entity deposit accounts. Def.’s Resp. 56.1 ¶¶ 1, 5; Pls.’ Resp. 56.1 ¶ 5. Upon the opening of the accounts, Plaintiffs signed BB&T signature cards for all of the accounts. Def.’s 56.1 ¶ 1. Additionally, Alvarez and Alixon signed a BB&T Resolution and Agreement for Deposit Account when opening the accounts for Inversiones. Def.’s 56.1 ¶ 2; Pls.’ Resp. 56.1 ¶ 2. In August 2015, Plaintiffs signed revised signature cards for all the accounts and added Colombo and Maria Laura as signatories to all ten (10) accounts. Def.’s 56.1 ¶ 3; Pls.’ Resp. 56.1 ¶ 3. The signature cards read in pertinent part:
Defendant argues that "[t]hroughout the Plaintiffs’ Statement of Undisputed Facts, there are facts that are not supported by citations to the record" in violation of Local Rule 56.1. Def.’s Resp. 56.1 ¶ 2 n.1. Moreover, because of Plaintiffs’ noncompliance, Defendant contends that any unsupported fact should be "disregarded or stricken" pursuant to Local Rule 56.1(d). Id. The Court agrees with Defendant. To the extent Plaintiffs’ Statement of Undisputed Facts includes facts not supported by citations to the record—or otherwise fails to comply with Local Rule 56.1—the Court will disregard such statements. See S.D. Fla. L.R. 56.1(c), (d); see also Smith v. Forest River, Inc. , No. 2:19-CV-14174, 2020 WL 2105073, at *2 (S.D. Fla. Apr. 16, 2020), report and recommendation adopted , No. 19-CV-14174, 2020 WL 2099435 (S.D. Fla. May 1, 2020), appeal dismissed , No. 20-12009-JJ, 2020 WL 7017843 (11th Cir. Oct. 2, 2020) ("The Court has discretion to disregard a factual assertion or dispute that is not properly supported.") (citing Fed. R. Civ. P. 56(e) ; S.D. Fla. L.R. 56.1(c), (d)); Campbell v. Allstate Ins. Co. , No. 2:19-CV-14270-RLR, 2021 WL 148735, at *3 (S.D. Fla. Jan. 15, 2021) ("[I]f a party fails to file a statement of facts that complies with Local Rule 56.1, then consistent with Federal Rule of Civil Procedure 56, the Court may strike the statement, grant relief to the opposing party, or enter other sanctions that the Court deems appropriate."). Further, to the extent Plaintiffs’ Response to BB&T's Statement of Material Facts includes rebuttals to Defendant's Statement of Undisputed Material Facts unsupported by evidence, the Court will deem Defendant's factual allegations as admitted. See Lugo v. Carnival Corp. , 154 F. Supp. 3d 1341, 1343 (S.D. Fla. 2015) ("Plaintiff's failure to comply with the Local Rules essentially leaves the Court with ‘the functional analog of an unopposed motion for summary judgment.’ ") (quoting Reese v. Herbert , 527 F.3d 1253, 1268 (11th Cir. 2008) ). However, while BB&T's submitted facts are deemed admitted, this "[C]ourt must still review the movant's citations to the record to determine if there is, indeed, no genuine issue of material fact." Mann v. Taser Int'l, Inc. , 588 F.3d 1291, 1303 (11th Cir. 2009) ; see also United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla. , 363 F.3d 1099, 1101–02 (11th Cir. 2004) ("At the least, the district court must review all of the evidentiary materials submitted in support of the motion for summary judgment."). "This requirement provides the Court an opportunity to address the merits of the motion." State Farm Mut. Auto. Ins. Co. & State Farm Fire & Cas. Co. v. B & A Diagnostic, Inc. , 145 F. Supp. 3d 1154, 1159 (S.D. Fla. 2015).
BY MY SIGNATURE, I HEREBY CERTIFY THAT: ... (2)(a) if I have opened a personal account, I have received the "Bank Services Agreement", the "BB&T Interest Rate Schedule" or Client Summary with interest rates, and the "BB&T Personal Services Pricing Guide" and agree to accept the terms of each document; or (2)(b) if I have opened a commercial account, I have received the "Commercial Bank Services Agreement" and the "BB&T Business Services Pricing Guide" and agree to accept the terms of each document ....
Def.’s 56.1 ¶ 4; Pls.’ Resp. 56.1 ¶ 4.
The Bank Services Agreement ("BSA") applies to Plaintiffs’ personal deposit accounts, while the Commercial Bank Services Agreement ("CSBA") applies to their business entity deposit accounts. Def.’s 56.1 ¶ 5; Pls.’ Resp. 56.1 ¶ 5. Defendant offers its business customers access to an online platform called CashManager Online ("CMOL"), which is separate and independent from its online banking platform. Def.’s 56.1 ¶¶ 12–13; Pls.’ Resp. 56.1 ¶ 12. CMOL permits customers to initiate wire transfers. Def.’s 56.1 ¶ 12; Pls.’ Resp. 56.1 ¶ 12. BB&T's online banking platform allows customers to view account balances, account activity, and access account statements. Def.’s 56.1 ¶ 20. Beginning on July 3, 2012, Alixon had an online banking profile—which, as of the filing of Defendant's Motion, continues to exist—that, in 2016, was linked to seven (7) of Plaintiffs’ accounts, including all six (6) business entity deposit accounts and Alixon's personal deposit account. Id. ¶¶ 21–22.
On January 28, 2013, Alixon entered into a Treasury Management Agreement ("2013 TMA") with BB&T on behalf of Inversiones. Def.’s 56.1 ¶ 14; Pls.’ Resp. 56.1 ¶ 14. At the same time, Alixon, again on behalf of Inversiones, signed a Highly Recommended Security Measures and Sound Business Practices form, wherein she and Inversiones acknowledged receipt of BB&T's Standard Security Protocol for CMOL ("Security Protocol"). Def.’s 56.1 ¶ 15; Pls.’ Resp. 56.1 ¶ 15. Thereafter, on February 25, 2013, BB&T granted Inversiones access to CMOL and linked the platform to the Inversiones 2737 account. Def.’s 56.1 ¶ 16. Around that time, BB&T provided Plaintiffs with Security Tokens ("2013 Tokens"), which permitted Plaintiffs to use CMOL to initiate wire transfers. Def.’s Resp. 56.1 ¶ 16. It is undisputed that the 2013 Tokens were never used to initiate a wire transfer and were deactivated in September 2013. Id.
In April 2015, Plaintiffs changed the mailing address for the accounts to "Jose Alvarez, 7971 NW 68th Street, Miami, FL 33166." Id. ¶ 18. On August 25, 2015, Plaintiffs added their daughters, Colombo and Maria Laura, as signatories to all the accounts. Id. ¶ 23. It is undisputed that Plaintiffs elected not to receive paper account statements by mail. Id. ¶¶ 23–24. Though the Parties dispute whether (1) Alixon requested she receive statements directly by e-mail and (2) BB&T would e-mail account statements to clients who elected not to receive paper statements, Pls.’ 56.1 ¶¶ 23–24; Def.’s Resp. 56.1 ¶¶ 23–24, it is clear from the record that Alixon communicated that she would access her account statements via BB&T's online banking platform. See (ECF No. 100-6) at 8–12; see also ("Alixon Dep. Tr.") (ECF No. 90) at 23:18–25:4 (testifying that she accessed her accounts and bank statements online). From the date they opened their accounts onward, Plaintiffs communicated with BB&T via e-mail and telephone, as well as in person when possible. Def.’s Resp. 56.1 ¶ 25.
On July 11, 2016, it is undisputed that Alixon's phone number and e-mail address were changed in BB&T's system by Defendant's employee, Giancarlo Paredes ("Paredes"), and without Plaintiffs being physically present. Id. ¶ 28. At that time, BB&T's policies and procedures permitted the change of client contact information "in non-face-to-face interactions, such as a phone call." Id. Additionally, Alixon would have received an automatically generated e-mail at her original e-mail address notifying her of the change. Id. ¶ 69; Def.’s 56.1 ¶¶ 32–33 (noting that clients automatically receive certain alerts whenever contact information is added, changed, or deleted, and that clients cannot opt out of receiving such alerts). Despite this, there is no record that Defendant received any objection to the change in e-mail address or notification that the new e-mail address was not authorized until May 1, 2017. Def.’s Resp. 56.1 ¶ 70; Def.’s 56.1 ¶ 34. Further, while Plaintiffs allege they could not view their account statements through BB&T's online banking platform beginning in July 2016, there is no evidence in the record that Plaintiffs notified BB&T until a March 9, 2017 e-mail. Def.’s 56.1 ¶¶ 43–44, 46.
On August 10, 2016, almost a month after Plaintiffs’ account contact information was changed, another BB&T employee, Juan Carlos Martinez ("Martinez"), received a call regarding Plaintiffs’ accounts. Def.’s 56.1 ¶ 30; Pls.’ Resp. 56.1 ¶ 30. The Parties dispute whether Martinez properly authenticated the individual as the customer, but the record indicates that he did, although he could not remember specifically which authentication questions he asked the caller. ("Martinez Dep. Tr.") (ECF No. 81) at 13:10–23 ("Q: Did that take place in this case in your communication with either Alixon Alvarez or anyone related to Inversiones La Mariana? A: That is correct, yes .... Q: Do you have a specific recollection of what it is that you did, what questions you asked, what security measures applied? THE WITNESS: No, sir."). The next day, Martinez received an e-mail from the new e-mail address linked to Plaintiffs’ account containing the account name, address, last transaction, and account balance, which was sufficient under BB&T's policies and procedures to authenticate the client. Def.’s 56.1 ¶ 31. Martinez responded to the August 11, 2016 e-mail with forms required to activate the CMOL service. Pls.’ 56.1 ¶ 33; Def.’s Resp. 56.1 ¶ 33. On August 12, 2016, Martinez received another e-mail from the new e-mail address associated with Plaintiffs’ account with the executed CMOL activation forms enclosed. Pls.’ 56.1 ¶ 34; Def.’s Resp. 56.1 ¶ 34.
It is undisputed that Martinez subsequently forwarded the forms to Luis Avina ("Avina"), a BB&T Treasury Management Internal Consultant, to complete the activation of the CMOL. Pls.’ 56.1 ¶ 39; Def.’s Resp. 56.1 ¶ 39. Avina and another employee, Audrey Hurayat, then separately verified the signatures of the executed forms by comparing them with the signature on Plaintiff's 2012 Corporate Resolution. Def.’s 56.1 ¶¶ 17–18. A few days later, on August 16, 2016, a CMOL account and CMOL access were set up and linked to the Inversiones 2737 account. Id. ¶ 19. A Token ("2016 Token") was sent to the address requested in the executed CMOL forms two (2) days later. Def.’s Resp. 56.1 ¶ 45.
Between August 30, 2016 and November 28, 2016, six (6) separate allegedly unauthorized wire transfers totaling $861,000.00 were completed from the Inversiones 2737 account. Def.’s Resp. 56.1 ¶ 49; Def.’s 56.1 ¶ 36. Additionally, eight (8) allegedly unauthorized intra-account transfers were made from Plaintiffs’ other accounts to the Inversiones 2737 account between September 1, 2016 and November 3, 2016. Def.’s Resp 56.1 ¶ 48. All six (6) of the wire transfers were processed through the Clearing House Interbank Payment System ("CHIPS"), and not the Fedwire Funds Service ("Fedwire"). Def.’s 56.1 ¶ 37. The process to initiate a wire transfer requires: (1) successfully logging into CMOL using the Customer ID, a User ID, and password, and (2) successfully completing a Token Logon using the Token Code displayed on the Token. Id. ¶ 38. The process was successfully completed for all six (6) wire transfers. Id. ¶ 39. Moreover, BB&T's fraud monitoring system was triggered after the first wire transfer totaling $ 100,500.00 was initiated, and the validity of the first wire was confirmed by a BB&T employee who called the international phone number linked to Plaintiffs’ account and spoke to an individual purporting to be Alixon. Id. ¶ 40; ("Brinkley Decl.") (ECF No. 102-5) ¶¶ 5–9. Plaintiffs alerted BB&T to the unauthorized transactions for the first time on May 17, 2017. Def.’s 56.1 ¶ 41.
In the Fourth Amended Complaint, Plaintiffs bring four claims against BB&T: (1) breach of contract ("Count I"), (2) refund of payment pursuant to Fla. Stat. § 670.204 ("Count II"), (3) violation of 12 C.F.R. §§ 210.25, et seq. ("Count III"), and (4) declaratory relief ("Count VI"). See generally Fourth Am. Compl. Now, Plaintiffs and BB&T move for summary judgment in their respective Motions. Plaintiffs move for partial summary judgment on Count II of their Fourth Amended Complaint, see generally Pls.’ Mot., while Defendant moves for summary judgment on all of Plaintiffs’ claims against it. See generally Def.’s Mot.
Fla. Stat. §§ 670.101, et seq. , codifies Article 4A of the Uniform Commercial Code ("Article 4A"). Accordingly, the Court will also refer to Count II as Plaintiffs’ Article 4A claim.
II. LEGAL STANDARD
Summary judgment is appropriate where there is "no genuine issue as to any material fact [such] that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R. Civ. P. 56 ). A genuine issue of material fact exists when "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "For factual issues to be considered genuine, they must have a real basis in the record." Mann v. Taser Int'l, Inc. , 588 F.3d 1291, 1303 (11th Cir. 2009) (citation omitted). Speculation cannot create a genuine issue of material fact sufficient to defeat a well-supported motion for summary judgment. Cordoba v. Dillard's, Inc. , 419 F.3d 1169, 1181 (11th Cir. 2005).
The moving party has the initial burden of showing the absence of a genuine issue as to any material fact. Clark v. Coats & Clark, Inc. , 929 F.2d 604, 608 (11th Cir. 1991). In assessing whether the moving party has met this burden, a court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the non-moving party. Denney v. City of Albany , 247 F.3d 1172, 1181 (11th Cir. 2001).
Once the moving party satisfies its initial burden, the burden shifts to the non-moving party to present evidence showing a genuine issue of material fact that precludes summary judgment. Bailey v. Allgas, Inc. , 284 F.3d 1237, 1243 (11th Cir. 2002) ; see also Fed. R. Civ. P. 56(e). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc. , 975 F.2d 1518, 1534 (11th Cir. 1992). But if the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Cross motions for summary judgment do not change the standard. Westport Ins. Corp. v. VN Hotel Grp., LLC , 761 F. Supp. 2d 1337, 1341 (M.D. Fla. 2010) (citing Latin Am. Music Co. v. Archdiocese of San Juan of Roman Catholic & Apostolic Church , 499 F.3d 32, 38 (1st Cir. 2007) ). Rather, "[c]ross-motions must be considered separately, as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law." Shaw Constructors v. ICF Kaiser Eng'rs, Inc. , 395 F.3d 533, 538–39 (5th Cir. 2004).
III. DISCUSSION
A. Defendant BB&T's Motion for Summary Judgment
In its Motion for Summary Judgment, Defendant argues that (1) Plaintiffs’ breach of contract claim fails because Defendant's alleged conduct does not constitute a breach; (2) only Plaintiff Inversiones can maintain a claim for violation of Fla. Stat. § 670.204, the claim is nonetheless barred as untimely, and the payment orders were effective under Fla. Stat. § 670.202 ; (3) Plaintiffs’ 12 C.F.R. § 210.25 ("Regulation J") claim fails because the funds transfer at issue was not carried out through Fedwire; and (4) Plaintiffs’ declaratory relief claim is deficient as a matter of law. Def.’s Mot. at 1.
Plaintiffs respond that (1) summary judgment is improper as to Count I because Defendant breached the contract and, alternatively, that there is an issue of material fact whether BB&T "acted in a grossly negligent manner or with willful misconduct"; (2) all Plaintiffs can maintain an action under § 670.204 and their claims are not barred for a failure to notify; (3) there is no conclusive evidence that any of the six (6) wire transfers were not transmitted through Fedwire, such that an issue of material fact remains; and (4) the contract between the Parties is ambiguous and "so one-sided that a Declaratory Action is required to discern the rights and responsibilities of the Parties" and, alternatively, illusory and void as against public policy. Pls.’ Resp. at 2–19.
i. Defendant is Entitled to Summary Judgment on Plaintiffs’ Breach of Contract Claim (Count I) Because the Alleged Conduct Does Not Constitute a Breach of Any Contractual Duty.
Defendant argues that it is entitled to summary judgment on Count I of Plaintiffs’ Fourth Amended Complaint because Plaintiffs cannot establish that it breached any contractual duty owed to them. See Def.’s Mot. at 2–8. Plaintiffs’ response is disjointed and difficult to understand, but generally contends that summary judgment as to Count I is improper because (1) Defendant breached the contracts by "failing to exercise ordinary care" and, alternatively, that issues of fact remain precluding summary judgment, specifically "whether [BB&T] acted in a grossly negligent manner or with willful misconduct"; (2) the contracts between the Parties are illusory and void against public policy; (3) the contracts’ notice requirements are ambiguous and contradictory, and therefore unenforceable; and (4) Defendant "has yet to produce all documents which comprise the contract between the Parties." See Pls.’ Resp. at 2–14. In reply, Defendant maintains that (1) there is no evidence to support it breached a contractual duty; (2) Plaintiffs’ allegations of gross negligence and willful misconduct were improperly raised in their Response and should not be considered; (3) Plaintiffs’ contract claim fails if the contracts are void and unenforceable; and (4) it has produced the entirety of the contracts between the Parties. Def.’s Reply at 2–8. For the reasons set forth below, the Court finds that Defendant has met its burden of establishing that there is no genuine dispute of material fact, and that Plaintiffs cannot prove that BB&T breached a contractual duty.
Defendant also argues that Plaintiffs’ arguments not supported by legal authority should be disregarded. Def.’s Reply at 9; see also Haasbroek v. Princess Cruise Lines, Ltd. , 286 F. Supp. 3d 1352, 1362 (S.D. Fla. 2017) ("A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority or in the face of contrary authority, forfeits the point. The court will not do his research for him."). The Court agrees and will not consider Plaintiffs’ arguments that are unsupported by legal authority.
Under Florida law, "[t]he elements of an action for breach of contract are: (1) the existence of a contract, (2) a breach of the contract, and (3) damages resulting from the breach." Rollins, Inc. v. Butland , 951 So.2d 860, 876 (Fla. Dist. Ct. App. 2006) (citation omitted). "A party cannot recover damages for breach of contract unless it can prove that the damages were proximately caused by the breach." Crowley Am. Transp., Inc. v. Richard Sewing Mach. Co. , 172 F.3d 781, 784 (11th Cir. 1999) (citation omitted).
As an initial matter, there is no dispute that Plaintiffs opened ten (10) deposit accounts with BB&T between January 23, 2012 and July 12, 2012, or that the BSA and CBSA apply to the personal and corporate entity deposit accounts, respectively. Def.’s 56.1 ¶¶ 1–5; Pls.’ Resp. 56.1 ¶¶ 1–5. Plaintiffs argue that Defendant breached the BSA and CBSA by (1) failing to provide bank statements by e-mail to the e-mail address provided by Plaintiffs, (2) failing to employ ordinary care in safeguarding Plaintiffs’ confidential information, and (3) failing to adhere to the standard of manual or mechanical examination of a random sampling of items being processed for payment to prevent fraud or reasonably detect fraud. See Pls.’ Resp. at 7. However, none of these alleged acts or omissions constitute a breach under the BSA or CBSA. First, Defendant was under no obligation to provide statements to Plaintiffs by e-mail. See ("Richendollar Decl.") (ECF No. 102-1) at 85, 234 ("Statements for your account, notices, other information or services regarding your account will be mailed, sent electronically, or otherwise be made available to you [.]") (emphasis added). Further, Alixon testified that she accessed her statements through Defendant's online banking platform. See Alixon Dep. Tr. at 23:18–25:4 (testifying that she accessed her accounts and bank statements online). Second, the BSA and CBSA imposed a duty on Plaintiffs to safeguard their confidential information, not Defendant. See Richendollar Decl. at 86, 234 ("You have a duty to safeguard access to your account ...."). And, third, the sections of the BSA and CBSA cited by Plaintiffs in support of their argument that BB&T failed to "adhere to [the] standard of manual or mechanical examination of a random sampling of items being processed for payment to prevent fraud or reasonably detect fraud" concern the processing of checks, which is not relevant to the wire transfers and intra-account transfers presently in dispute. See id. at 86, 253.
Next, Plaintiffs argue that Defendant breached the 2013 TMA by failing to (1) exercise ordinary care, (2) maintain Plaintiffs’ confidential information, and (3) "confirm the identity of any person execut[ing] a transaction." Pls.’ Resp. at 9–11. Plaintiffs also assert that Defendant's "failure to properly instruct their personnel on [its own] Policies and Procedures, as evidenced by BB&T's agent's failure to follow the Policies and Procedures, is in fact a breach of the Contract (i.e. section 2(a) of the TMA)." Id. at 14.
In their Response, Plaintiffs raise, for the first time, arguments that Defendant's alleged breach was grossly negligent or willful misconduct. See Pls.’ Resp. at 4; see generally Fourth Am. Compl. Therefore, these arguments are not properly before the Court. See Gilmour v. Gates, McDonald & Co. , 382 F.3d 1312, 1315 (11th Cir. 2004) ("A plaintiff may not amend her complaint through argument in a brief opposing summary judgment."). Nonetheless, the Court concludes—for reasons discussed below in Section III.A.ii.—that BB&T complied with its two-step authentication measures, which is commercially reasonable, and that its conduct failed to rise to the level of gross negligence or willful misconduct. See Cent. State Transit & Leasing Corp. v. Jones Boat Yard, Inc. , 206 F.3d 1373, 1377 (11th Cir. 2000) ("To hold a party liable for gross negligence, the district court must find that the defendant had knowledge of the existence of circumstances which constitutes a "clear and present danger" and yet still undertakes "a conscious, voluntary act or omission ... which is likely to result in injury." ") (quoting Sullivan v. Streeter , 485 So. 2d 893, 895 (Fla. Dist. Ct. App. 1986) ); see also Bell v. Circle K Stores Inc. , No. 8:18-CV-1296-T-SPF, 2019 WL 5190907, at *4 (M.D. Fla. Oct. 15, 2019) (stating that conduct rises to the level of willful misconduct when (1) the actor has knowledge, actual or constructive, of the likelihood that his conduct will cause injury to other persons or property; and (2) the conduct indicates a reckless indifference to the rights of others).
Relevantly, Plaintiff Inversiones was the lone Plaintiff to enter into the 2013 TMA with BB&T on January 28, 2013. Def.’s 56.1 ¶ 14; Pls.’ Resp. 56.1 ¶ 14. The TMA governs only BB&T's Treasury Management Services, while the CBSA governs the entirety of Plaintiff Inversions’ banking relationship with Defendant. See ("Wilson Decl.") (ECF No. 102-2) at 8, 10. In addition, the TMA incorporates Defendant's Security Protocol for CMOL and Highly Recommended Security Measures and Sound Business Practices. See id. at 8–10.
Here, Defendant has shown—and Plaintiffs have failed to rebut—that "the conduct Plaintiffs allege constitutes a breach of contract is governed by the CBSA." See Def.’s Reply at 2; see also Wilson Decl. at 8, 10. As discussed in more detail below, it is undisputed that each of the six (6) wire transfers at issue was initiated after completion of Defendant's two-factor authentication process. Def.’s 56.1 ¶¶ 38–39. Therefore, Plaintiffs’ arguments that Defendant failed to exercise ordinary care and confirm the identity of a person executing a transaction are unpersuasive. And, the evidence is clear that the Parties’ agreements imposed an affirmative duty on Plaintiffs to safeguard their own confidential information. See Richendollar Decl. at 86, 234 ("You have a duty to safeguard access to your account ....") (emphasis added).
Further, even if the facts supported Plaintiffs argument that Defendant breached the TMA by failing to follow its policies and procedures—which they do not, this and other courts have found that a bank does not breach any duty to its customers by failing to comply with its internal policies and procedures. See Bowen v. Target Corp. , No. 09-80882-CIV-COHN, 2010 WL 3746497, at *2 (S.D. Fla. Sept. 21, 2010) (noting that "[i]n Mayo v. Publix Super Markets, Inc. , 686 So. 2d 801, 802 (Fla. Dist. Ct. App. 1997), the court stated that ‘a party's own internal rule does not itself fix the legal standard of care in a negligence action,’ and ‘[a] violation of internal policies does not automatically result in a finding of breach of a duty of care’ "); Banks v. Bank of Am., N.A. , 505 F. Supp. 2d 159, 164 (D.D.C. 2007) ("Banks has failed to establish that BofA owed him a duty of care to comply with its internal policies regarding financial transactions involving its customers’ accounts."); Gilbert Tuscany Lender, LLC v. Wells Fargo Bank , 232 Ariz. 598, 307 P.3d 1025, 1030 (Ariz. Ct. App. 2013) (holding that "no duty was created by Wells Fargo's failure to comply with its policy to ask for corporate documents before opening a corporate account."); see also Pollock v. Fla. Dep't Highway Patrol , 882 So. 2d 928, 937 (Fla. 2004) (concluding that a duty of care cannot be created by the internal policies of a governmental agency).
Alternatively, Plaintiffs contend—again, for the first time in their Response—that the contracts between the Parties are unconscionable and therefore unenforceable as against public policy. See Pls.’ Resp. at 4–5, 12–13. Defendant correctly observes that this argument is "fatal to the breach of contract claim" because an essential element is the existence of a valid contract. See Def.’s Reply at 4–5; see also Rollins, Inc. v. Butland , 951 So.2d 860, 876 (Fla. Dist. Ct. App. 2006). Moreover, Plaintiffs have failed to properly allege, much less establish through evidence in the record, that the contracts are unconscionable. See Basulto v. Hialeah Auto. , 141 So. 3d 1145, 1159 (Fla. 2014) ("All of the district courts of appeal in this state have previously recognized that, under Florida contracts law, both procedural and substantive unconscionability must be established as a defense to contract enforcement."). Also, bank contracts such as those in dispute are regularly enforced by Florida courts. See, e.g., Regions Bank, Etc. v. Kaplan , 8:12:CV1837-T-17MAP, 2016 WL 1592752, at *4-15 (M.D. Fla. Apr. 18, 2016) (enforcing the terms of a bank's deposit agreement). Consequently, Plaintiffs’ alternative argument is without merit.
Finally, to the extent Plaintiffs attempt to raise discovery issues in their Response, the Court declines to address them now. See Pls.’ Resp. at 13–14. The Court previously instructed the Parties that discovery disputes should be brought before the Honorable Jacqueline Becerra, United States Magistrate Judge, pursuant to the Court's Paperless Order Referring Pretrial Discovery Matters to Magistrate Judge Jacqueline Becerra (ECF No. 6). See, e.g. , (ECF No. 76) ("Next, to the extent Defendant has withheld information, provided untimely or inconsistent information, or failed to abide by the Federal Rules of Civil Procedure, Plaintiffs have not raised these issues before United States Magistrate Judge Becerra pursuant to the Court's Order of Referral.").
Therefore, despite drawing all inferences in favor of Plaintiffs, Defendant has met its burden of showing that Plaintiffs are unable to establish an essential element of their claim for breach of contract—an actual breach by Defendant. See Denney , 247 F.3d at 1181 ; see also Crowley Am. Transp., Inc. , 172 F.3d at 784 (affirming summary judgment where Plaintiffs could not establish a contractual duty). Thus, BB&T is entitled to summary judgment on Count I.
ii. Defendant is Entitled to Summary Judgment on Plaintiffs’ Article 4A Claim (Count II) Because Plaintiff Inversiones’ Claim is Barred and the Payment Orders Were Nonetheless Effective.
In its Motion, Defendant asserts that (1) only Plaintiff Inversiones can maintain a claim against Defendant under Article 4A; (2) any Article 4A claims against Defendant are barred due to Plaintiffs’ failure to timely notify Defendant; and (3) the payment orders are effective under § 670.202(2). Def.’s Mot. at 9–18. Plaintiffs argue in response that (1) all named Plaintiffs can bring an action under Chapter 670; (2) Plaintiffs’ claims are not barred for a failure to notify BB&T; (3) the payment orders were not effective under § 670.202(2) ; and (4) the timing of the notice requirement in the Parties’ contracts is unenforceable under § 670.204(1). Pls.’ Resp. at 12–13, 14–18. Defendant maintains in its Reply that the thirty (30) day notice requirement is enforceable under Article 4A. Def.’s Reply at 9–10.
Chapter 670 of the Florida Statutes codifies Article 4A of the Uniform Commercial Code ("UCC"). Fla. Stat. § 670.101. Article 4A governs funds transfers, which are "the series of transactions, beginning with the originator's payment order, made for the purpose of making payment to the beneficiary of the order." Id. § 670.104(1). A payment order is "an instruction of a sender to a receiving bank, transmitted orally, electronically, or in writing, to pay, or to cause another bank to pay, a fixed or determinable amount of money to a beneficiary if" certain conditions are met. Id. § 670.103(1)(c). Relevantly, § 670.202 governs the authorization and verification of payment orders, while § 670.204 addresses the refund of payment and duty of a customer to report with respect to unauthorized payment orders. See §§ 670.202, 670.204.
a. Plaintiff Inversiones Failed to Notify Defendant within the Agreed Upon Time.
To begin, it is undisputed that Article 4A applies only to the six (6) payment orders, or "wire transfers," initiated from the Inversiones 2737 account using the CMOL platform. See §§ 670.102, 670.104; see also Richendollar Decl. ¶ 41; Wilson Decl. ¶ 17. The other eight (8) intra-account transfers were a combination of telephone transfers and online transfers, which were not wire transfers. See Richendollar Decl. ¶¶ 32–40, 42; see also § 670.104 cmt. 4 ("[A] subsidiary corporation may make payments to its parent by authorizing the parent to order the subsidiary's bank to pay the parent from the subsidiary's account. These transactions are not covered by Article 4A because [§ 607.103(1)(c)](2) is not satisfied. Article 4A is limited to transactions in which the account to be debited by the receiving bank is that of the person in whose name the instruction is given."). Thus, Defendant has met its burden of showing that only Plaintiff Inversiones can maintain a claim under Article 4A. See Def.’s Mot. at 9–10. Specifically, Plaintiff Inversiones is the "sender," while BB&T is the "receiving bank." See § 670.103 (defining "receiving bank" and "sender"). The remaining Plaintiffs are therefore not "affected parties" under Article 4A. See Regions Bank v. Provident Bank, Inc. , 345 F.3d 1267, 1274 (11th Cir. 2003) ("The rules that emerged during the drafting of the U.C.C. are intended to be the exclusive means of determining the rights, duties and liabilities of the affected parties in any situation covered by particular provisions of the Article. ").
"Rights and liabilities for payment orders, or wire transfers, are governed by Article 4A of the Uniform Commercial Code .... Article 4A was crafted with the express purpose of creating—in an age of increasing automation—inflexible rules of liability for wire transfer disputes." First Sec. Bank of New Mexico, N.A. v. Pan Am. Bank , 215 F.3d 1147, 1152 (10th Cir. 2000) (emphasis added).
Plaintiffs assert that "all the unauthorized wire transfers, inclusive of the wire transfers between the Plaintiffs’ accounts into the Inversiones 2737 account are at issue in this action [and a]ll named Plaintiffs, including Alvarez; Alixon; Mariana; Maria Laura; ACCD; Alvarez & Parilli are "affected parties" within the meaning of Article 4A." Pls.’ Resp. at 14. However, Plaintiffs cite only to their Fourth Amended Complaint and an Official Comment to § 670.104 in support of their contentions that the intra-account transfers were wire transfers and that all Plaintiffs can maintain an Article 4A claim. See id. Without supporting their arguments with citations to the record or legal authority, Plaintiffs fail to rebut Defendant's showing.
Next, the Court finds the 30-day notice requirement in the TMA is enforceable. See Wilson Decl. at 8 (stating that the customer shall notify BB&T within 30 days of "any errors, discrepancies or fraudulent transactions"). Article 4A's statutory notice period provides a one-year time limit for the customer to notify the bank of any unauthorized transaction. See § 670.505. However, § 670.501 permits the amendment of this one-year notice period by agreement. See § 670.501.
Plaintiffs argue that § 670.501 is not applicable in this case because "the fraudulent wires in this case are governed by § 670.204 [.]" See Pls.’ Resp. at 16; see also § 670.204(2) ("Reasonable time under subsection (1) may be fixed by agreement, but the obligation of a receiving bank to refund payment as stated in subsection (1) may not otherwise be varied by agreement."). Defendant counters that "Subsection (1) concerns a receiving bank's obligation to refund payment of a payment order that is not effective or not enforceable under Article 4A—but says nothing about the customer's notification requirement under Fla. Stat. § 670.505 (which does not prohibit variation by agreement)." Def.’s Reply at 10.
Sections 670.204 and 670.505, along with their Official Comments, provide what appears to be contradictory guidance. Official Comment 2 to Section 670.204 states that while "§ 4A–204 is designed to encourage a customer to promptly notify the receiving bank that it has accepted an unauthorized payment order, ... [t]here is no intention to impose a duty on the customer that might result in shifting loss from the unauthorized order to the customer." § 670.204 cmt. 2. "The Official Comment to U.C.C. § 4A–505, however, notes that ‘the obligation to refund may not be asserted by the customer if the customer has not objected to the debiting of the account within one year after the customer received notification of the debit.’ " Anderson v. Branch Banking & Tr. Co. , 119 F. Supp. 3d 1328, 1350 (S.D. Fla. 2015). Further, "[a]lthough the drafters clearly did not intend ‘to impose a duty on the customer which would result in shifting loss to the customer’ under § 4A–204, the drafters included a statute of repose to advance finality and placed the repose period well beyond the ninety-day notification period in § 4A–204." Id.
Despite Article 4A's conflicting language, the Court finds Defendant's argument persuasive. A federal district court in Louisiana facing a similar dispute and factual predicate—under a statute identical to § 670.505—found that (1) the parties’ modification of the one-year statute of repose to thirty (30) days was enforceable, and (2) it precluded the plaintiff from bringing a claim to dispute a fraudulent funds transfer. Moreover, courts within this district and throughout Florida have allowed the statutory notice period in Article 4 of the UCC to be modified by agreement. See Gilbert & Caddy, P.A. v. JP Morgan Chase Bank, N.A. , 193 F. Supp. 3d 1294, 1304 (S.D. Fla. 2016) ("Florida's UCC places the burden to review bank statements on the customer, and expressly allows the parties to alter the terms of Chapter 674."); Cheese & Grill Rest., Inc., v. Wachovia Bank, N.A. , 970 So. 2d 372, 374–75 (Fla. Dist. Ct. App. 2007) (affirming summary judgment in favor of a bank where the bank's customer failed to notify it within thirty days of unauthorized transactions). Like § 670.505 of Article 4A, § 674.406(4) of Article 4—codified in §§ 674.101 et seq. —also "precludes" a customer from asserting claims against a defendant bank when the customer fails to notify the bank of unauthorized transactions. Compare § 674.406(4) ("If the bank proves that the customer failed, with respect to an item, to comply with the duties imposed on the customer by subsection (3), the customer is precluded from asserting against the bank ....") (emphasis added), with § 670.505 (stating that a customer who fails to timely notify the bank is "precluded from asserting that the bank is not entitled to retain the payment") (emphasis added). Thus, the Parties’ modification of the one-year statute of repose to thirty (30) days in the TMA is enforceable.
See Priority Staffing, Inc. v. Regions Bank , No. CIV.A. 5:11-0667, 2013 WL 5462239, at *3 (W.D. La. Sept. 30, 2013) :
PSI argues that any limitation on the one-year time period should be void pursuant to La. R.S. 10:4A–202(f), which states: "Except as provided in this Section and in R.S. 10:4A–203(a)(1), rights and obligations arising under this Section or R.S. 10:4A–203 may not be varied by agreement." That statute is irrelevant in this instance, however. It involves the authenticity and verification of payment orders, not a disputed transfer. Section 505 is on point and permits contractual limitation of the 1–year time period for customers to raise disputes.
Finally, Plaintiffs’ failure to notify Defendant within thirty days as required by the TMA bars their claim under § 670.204. Defendant has presented evidence that Plaintiffs viewed their bank account statements online. See (ECF No. 100-6) at 8–12; see also Alixon Dep. Tr. at 23:18–25:4 (testifying that she accessed her accounts and bank statements online). And, Plaintiffs have failed to rebut the presumption that they received their bank statements. See Chavez v. Mercantil Commercebank, N.A. , No. 10-23244-CIV, 2014 WL 2158417, at *14 (S.D. Fla. May 23, 2014) (finding that bank customer failed to rebut presumption of receipt where he "never took the simple steps necessary to receive and view his statements online").
Additionally, despite their arguments to the contrary, see Pls.’ Resp. at 16 (asserting that "in deposition testimony it shows that Alixon notified the Bank of the inability to log into the online portal by August, 2016 and therefore Plaintiffs complied with the notice requirement of both § 670.204, Fla. Stat. and the Contract when ... they called the Bank several times and left messages"), Plaintiffs did not notify Defendant about the fraudulent wire transfers until May 17, 2017, which is "(1) 260 days after Plaintiffs’ August 31, 2016 statement; (2) 230 days from the September 30, 2016 statement; (3) 199 days from the October 31, 2016 statement; and (4) 169 days from the November 30, 2016 statement." See Def.’s Mot. at 13; see also Def.’s 56.1 ¶ 41; Alixon Dep. Tr. at 26:22–24 (testifying that she attempted to call Defendant through an operator, but that "it was impossible to leave a voice message because if the call did not connect the operator would hang up" and that she "was unsuccessful in trying to communicate with the bank").
Therefore, because "the parties contractually agreed to a shortened time period of 30 days in which [Plaintiffs] had to notify [Defendant] in order to dispute a transfer of funds[,]" Plaintiff Inversiones’ Article 4A claim is barred as untimely under § 607.550. See Priority Staffing, Inc. , 2013 WL 5462239, at *3 ; Wilson Decl. at 8 (stating that the customer shall notify BB&T within 30 days of "any errors, discrepancies or fraudulent transactions").
b. The Six (6) Payment Orders Were Effective.
Even if Plaintiff Inversiones’ Article 4A claim had been timely, it would nevertheless fail because the payment orders were effective under § 670.202(2). Section 670.202(2) reads in relevant part:
If a bank and its customer have agreed that the authenticity of payment orders issued to the bank in the name of the customer as sender will be verified pursuant to a security procedure, a payment order received by the receiving bank is effective as the order of the customer, whether or not authorized, if the security procedure is a commercially reasonable method of providing security against unauthorized payment orders and the bank proves that it accepted the payment order in good faith and in compliance with the security procedure and any written agreement or instruction of the customer restricting acceptance of payment orders issued in the name of the customer.
Id. (emphasis added). Accordingly, § 670.202(2) imposes three requirements on a bank in order for it to shift the risk of loss of any unauthorized transfer to its customer: (1) the bank and the customer must have agreed on a security procedure for verifying payment orders; (2) the agreed-upon security procedure must be commercially reasonable; and (3) the bank must have accepted the payment order in good faith and in compliance with the security procedure and any relevant written agreement or customer instruction. See Chavez v. Mercantil Commercebank, N.A. , 701 F.3d 896, 900 (11th Cir. 2012). And, under Florida's version of the UCC, "if a bank and its customer agree upon a ‘security procedure,’ ... and the procedure is commercially reasonable, a bank is absolved of liability ... if the bank, when processing an order to transfer the customer's funds, follows the security procedure in good faith." Id. at 897. Here, Defendant has produced evidence establishing these requirements have been met.
1. The Parties Agreed to CMOL's Security Protocol.
Defendant argues that it is undisputed that Inversiones and BB&T agreed to a security procedure for the funds transfers at issue—CMOL's Security Protocol. Def.’s Mot. at 15. Plaintiff's counter that it is undisputed that they did not agree to the CMOL's security procedures because the 2013 CMOL was terminated after "non-use" and they never signed the 2016 CMOL documents. Pls.’ Resp. at 16–17. Defendant argues in reply that (1) there is no evidence in the record or any legal authority to support Plaintiffs’ argument that an agreement terminates after non-use and (2) Plaintiffs do not present any evidence to dispute that Inversiones and BB&T agreed to security procedures for initiating wires from the Inversiones 2737 account via CMOL. Def.’s Reply at 10–11.
Section 670.201 defines a security procedure as a "procedure established by agreement of a customer and a receiving bank for the purpose of: (1) [v]erifying that a payment order or communication amending or canceling a payment order is that of the customer; or (2) [d]etecting error in the transmission or the content of the payment order or communication." § 670.201. "A security procedure may require the use of algorithms or other codes, identifying words or numbers, encryption, callback procedures, or similar security devices." Id.
It is undisputed that Plaintiff Alixon, when executing the 2013 TMA on Plaintiff Inversiones’ behalf, signed a Highly Recommended Security Measures and Sound Business Practices form acknowledging receipt of and agreeing to BB&T's Standard Security Protocol for CMOL. Def.’s 56.1 ¶¶ 14–15; Pls.’ Resp. 56.1 ¶¶ 14–15. And, as Defendant contends, Plaintiffs cite to no legal authority or evidence in the record that the 2013 TMA or its agreed-upon security procedure were terminated for non-use. But see Def.’s Resp. 56.1 ¶ 16 (stating that the 2013 Tokens were never used to initiate a wire transfer and were deactivated in September 2013, not the TMA and its Security Protocol). Further, the Security Protocol implements a two-factor authentication process requiring a Customer ID, User ID and password, and a Token. See Wilson Decl. at 12. As a result, the Court finds the use of a Token in the authentication process satisfies the definition of security procedure in § 607.201. See § 670.201 (noting that a security procedure may require the use of codes, numbers, or similar security devices); cf. Chavez , 701 F.3d at 903 (holding that a security procedure that "requires only that payment orders delivered in person be in writing and delivered and signed by [the plaintiff]" does not satisfy § 670.201 ’s definition of security procedure). Thus, the Court finds that Plaintiff Inversiones and BB&T agreed to a security procedure in 2013.
2. Defendant's Security Procedure was Commercially Reasonable.
Defendant argues that the Security Protocol's two-factor authentication procedure is commercially reasonable. Def.’s Mot. at 16. In response, Plaintiffs argue that even if the CMOL security procedures applied, "they were rendered null by the fact that BB&T changed Plaintiffs’ confidential credentials for the online portal, and provided the 2016 Token (which contained security codes) to an Impostor, and in doing so gave the Impostor access to complete intra-account transfers[.]" Pls.’ Resp. at 16–17. Defendant asserts in its Reply that the record does not support that BB&T changed the credentials to any online portal or that the agreements would be "rendered null if an alleged imposter obtained access to a token." Def.’s Reply at 10–11.
The commercial reasonableness of a security procedure is "a question of law to be determined by considering the wishes of the customer expressed to the bank; the circumstances of the customer known to the bank [ ]; alternative security procedures offered to the customer; and security procedures in general use by customers and receiving banks similarly situated." § 670.202(3). A security procedure is deemed commercially reasonable if the (1) security procedure was chosen by the customer after the bank offered, and the customer refused, a security procedure that was commercially reasonable for that customer and (2) customer expressly agreed in writing to be bound by any payment order, whether or not authorized, issued in its name and accepted by the bank in compliance with the security procedure chosen by the customer. Id. "The Official Comment to § 670.204 notes that the provision only applies to cases in which, among other things, ‘no commercially reasonable security procedure is in effect.’ Thus, where there exists a commercially reasonable security procedure, the bank will be insulated from liability." Anderson , 119 F. Supp. 3d at 1348 (internal citations omitted).
In support of its argument that CMOL's Security Protocol is commercially reasonable, Defendant points to the Federal Financial Institutions Examination Council's ("FFIEC") 2005 Guidance and 2016 Information Technology Handbook. See Def.’s Mot. at 15–16. The United States Court of Appeals for the Eighth Circuit relied on the FFIEC's standards in determining commercial reasonableness in a case addressing comparable claims under Article 4A. See Choice Escrow & Land Title, LLC v. BancorpSouth Bank , 754 F.3d 611, 619–20 (8th Cir. 2014). The Court is similarly persuaded by the FFIEC's standards.
Fed Fin. Insts. Examination Council, Authentication in an Internet Banking Environment (Oct. 12, 2005), available at https://www.ffiec.gov/pdf/authentication_guidance.pdf (last viewed Mar. 22, 2021) [hereinafter "2005 Guidance"].
Fed. Fin. Insts. Examination Council, IT Exam Handbook (Sept. 2016), available at https://www.ffiec.gov/press/PDF/FFIEC_IT_Handbook_Information_Security_Booklet.pdf (last viewed Mar. 22, 2021) [hereinafter "2016 Handbook"].
The 2005 Guidance recommends authentication methods involving three factors: (1) something the customer knows; (2) something the customer has; and (3) something the user is. See 2005 Guidance, at 3. Additionally, the FFIEC recommends the implementation of robust two-factor authentication protocols through tokens. See 2016 Handbook at 36 n.41. It is undisputed that the process to initiate a wire transfer through CMOL requires: (1) successfully logging into CMOL using the Customer ID, a User ID, and password, and (2) successfully completing a Token Logon using the Token Code. Def.’s 56.1 ¶ 38. Plaintiffs’ arguments that Defendant unilaterally changed the credentials to their online portal or that the agreements would be "rendered null" if an alleged imposter obtained access to a token lack support in the record. Accordingly, because the Security Protocol complies with the FFIEC's suggested standards, the Court finds BB&T's security procedure commercially reasonable under § 670.202(3).
3. Defendant Complied with Its Security Procedure in Good Faith.
Finally, Defendant argues that its execution of the six (6) wire transfers complied with its security procedures in good faith. Def.’s Mot. at 17. Plaintiffs respond that "it cannot in good conscience reasonably be found that BB&T acted fairly when it acted unilaterally in not safeguarding Plaintiffs’ personal information" citing to the two-part test applied in Experi-Metal, Inc. v. Comerica Bank , No. 09-14890, 2011 WL 2433383 (E.D. Mich. June 13, 2011) (citing Maine Family Federal Credit Union v. Sun Life Assurance Co. of Canada , 727 A.2d 335, 342–43 (Me. 1999)). Pls.’ Resp. at 18. In its Reply, Defendant asserts that this Court should not apply "the flawed test followed by the Experi-Metal Court." Def.’s Reply at 11.
Good faith is defined by Article 4A as "honesty in fact and the observance of reasonable commercial standards of fair dealing." § 670.105(1)(f). "In order to prove that there was a lack of ‘good faith,’ a party must show that the person was either dishonest or unfair; proof of negligence is not dispositive of a lack of ‘good faith.’ " Chavez v. Mercantil Commercebank, N.A. , No. 10-23244-CIV, 2011 WL 5285713, at *6 (S.D. Fla. Nov. 1, 2011), rev'd on other grounds , 701 F.3d 896 (11th Cir. 2012).
In this case, Defendant has met its burden of showing that it complied in good faith with its security procedures. It is undisputed that CMOL's two-factor authentication was successfully completed for all six (6) wire transfers. Def.’s 56.1 ¶ 39. Additionally, the two-factor authentication process was automated, meaning "the scope of the good-faith inquiry under Article 4A is correspondingly narrow." Choice Escrow , 754 F.3d at 623. Plaintiffs have presented no evidence that Defendant acted in a dishonest manner.
Moreover, Plaintiffs’ argument that "fair dealing ‘is concerned with the fairness of conduct rather than the care with which an act is performed’ " is unavailing here. See Experi-Metal, Inc. , 2011 WL 2433383, at *11. The two-part fair dealing test proposed by Plaintiffs—while applied by Florida courts in the holder in due course context under Article 3—"would distort the balance of rights and obligations that Article 4A attempts to strike between the bank and its institutional customer." Choice Escrow , 754 F.3d at 623. Furthermore, the Eighth Circuit distinguished between a case where a bank "allowed overdrafts totaling $5 million from a single account that usually had a zero balance" and a case where a bank "promptly executed a payment order that had cleared the bank's commercially reasonable security procedures and [in which] the bank had no independent reason to suspect was fraudulent." Choice Escrow , 754 F.3d at 624 (emphasis in original). As in Choice Escrow , the Court finds the facts of the instant case akin to the latter example.
Consequently, no genuine issue of material fact exists as to (1) the date Plaintiffs first notified Defendant of the unauthorized transactions or (2) Defendant's good-faith compliance with its commercially reasonable security procedure, and summary judgment in BB&T's favor on Count II is warranted.
iii. Defendant is Entitled to Summary Judgment on Plaintiffs’ Regulation J Claim Because the Fund Transfers were Transmitted through CHIPS and not Fedwire.
Defendant argues that Regulation J does not apply to the six (6) wire transfers at issue because they were processed through CHIPS and not Fedwire. See Def.’s Mot. at 18. Plaintiffs argue in response that, because "there is no conclusive evidence that the [sic] neither the intra-bank transfers nor the six (6) fraudulent transfers were carried out at least in part through Fedwire, an issue of fact remains as to whether Regulation J applies." Pls.’ Resp. at 19. In its Reply, Defendant contends that (1) there is undisputed evidence that the six (6) wire transfers were transmitted through CHIPS and not Fedwire, and (2) no evidence supports the contention that the intra-account transfers were wire transfers. Def.’s Reply at 10.
Regulation J governs funds transfers through Fedwire. See 12 C.F.R. § 210.25(a), (b)(2)(v). "Fedwire means the funds-transfer system owned and operated by the Federal Reserve Banks that is used primarily for the transmission and settlement of payment orders governed by this subpart." Id. at § 210.26(e). Moreover, Regulation J incorporates the provisions of UCC Article 4A. See id. at § 210.225(b); see also Grossman v. Nationsbank, N.A. , 225 F.3d 1228, 1232 (11th Cir. 2000) (stating that "Regulation J applies U.C.C. Article 4A to wire transfers conducted using Fedwire").
Here, Defendant has provided an affidavit, see Wilson Decl. ¶ 18, and its own internal wire transfer documents, see id. at 14–20, showing that the six (6) wire transfers were processed through CHIPS. Plaintiffs have not pointed to anything in the record rebutting Defendant's evidence. See generally Pls.’ Resp. Accordingly, because the six (6) allegedly unauthorized wire transfers were transmitted through CHIPS and not Fedwire, Defendant has met its burden of proving that no genuine issue as to any material fact exists, and is therefore entitled to a judgment as a matter of law on Count III.
iv. Defendant is Entitled to Summary Judgment on Plaintiffs’ Declaratory Relief Claim Because the Terms of the Parties’ Agreement are Clear and There is Not "Actual, Present Need for Declaration."
Finally, Defendant argues that Plaintiffs’ claim for declaratory relief is deficient as a matter of law because (1) the terms of the Parties’ contracts are clear and (2) Plaintiffs’ Fourth Amended Complaint does not allege that the BSA, CBSA, or TMA are vague, ambiguous, or in dispute. Def.’s Mot. at 20–21. Plaintiffs, in turn, assert that "a declaratory action is needed to interpret what responsibilities, duties and/or liabilities BB&T has with respect to the accounts in contrast to those responsibilities, duties and liabilities expressly imposed on Plaintiffs on that same subject." Pls.’ Resp. at 5. Specifically, Plaintiffs maintain that "[t]he CBSA, BSA, and the Bank Statements attempted to impose a notice requirement on the Plaintiffs, and fully exculpate BB&T in the event notice was not timely provided. Even these ‘notice requirements’ are ambiguous and contradictory, which render them either unenforceable or subject to a declaratory action." Id. at 12. Defendant argues in reply that the notice requirements in the CBSA, BSA, and bank statements are neither ambiguous nor contradictory. Def.’s Reply at 6.
Under Fla. Stat. §§ 86.011, et seq. , a court may render declaratory judgments on "the existence, or nonexistence: (1) [o]f any immunity, power, privilege, or right; or (2) [o]f any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future." § 86.011. "[ Section 86.011 ] is intended to be remedial in nature, and is to be liberally administered and construed. Florida law governs and federal case law interpreting the federal Declaratory Judgment Act is not applicable in this case." State Farm Mut. Auto. Ins. Co. v. B&A Diagnostic, Inc. , No. 1:13-CV-24393-UU, 2014 WL 11906612, at *3 (S.D. Fla. Jan. 28, 2014) (internal citations omitted).
However, there must be a bona fide dispute between the parties and an actual, present need for declaration in order for a party to maintain an action for declaratory relief. See Argus Photonics Group, Inc. v. Dickenson , 841 So. 2d 598, 599 (Fla. Dist. Ct. App. 2003) ; Britamco Underwriters, Inc. v. Cent. Jersey Invs., Inc. , 632 So. 2d 138, 139 (Fla. Dist. Ct. App. 1994). A court lacks jurisdiction to render declaratory relief if these required elements are not present. See State Farm Mut. Auto. Ins. Co. v. Marshall , 618 So. 2d 1377, 1380 (Fla. Dist. Ct. App. 1993) ("Absent a bona fide need for a declaration based on present, ascertainable facts, the circuit court lacks jurisdiction to render declaratory relief."); see also Golden Crown Depot 2007, Inc. v. Depositors Ins. Co. , 13-21476-CIV, 2013 WL 12094630, at *3 (S.D. Fla. July 31, 2013) (dismissing a claim for declaratory relief because "[c]onclusory allegations that the Plaintiff is in ‘doubt’ about the policy as a whole are not sufficient to state a claim for declaratory relief"). Further, "[i]t is not the function of the courts to ‘rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain.’ " Marriott Corp. v. Dasta Const. Co. , 26 F.3d 1057, 1068 (11th Cir. 1994).
Plaintiffs allege in their Fourth Amended Complaint that "BB&T's reliance upon the agreement(s) has impaired, altered and otherwise diminished Plaintiffs’ rights." Fourth Am. Compl. ¶ 141. However, Plaintiffs’ challenge of Defendant's reliance on the agreements as written and executed by the Parties appears to be nothing more than a request for the Court to "substitute [its] judgment for that of the parties [ ] in order to relieve [Plaintiffs] from the apparent hardship of an improvident bargain." See Marriott Corp. , 26 F.3d at 1068. That the Court will not do.
Moreover, Plaintiffs argue that the BSA, CBSA, and bank statements are ambiguous and contradictory for the first time in their Response. See Pls.’ Resp. at 1, 12; see generally Fourth Am. Compl. Though Plaintiffs’ arguments regarding the ambiguity and contradictory nature of the contracts’ notice requirements are improperly raised in the Response, see Gilmour , 382 F.3d at 1315 ("A plaintiff may not amend her complaint through argument in a brief opposing summary judgment."), the Court nevertheless finds them unpersuasive. First, it is unclear from Plaintiffs’ Response what language from the BSA, CBSA, and banking statements is ambiguous. See Pls.’ Resp. at 12–13. Second, it is undisputed that Plaintiffs opened both personal deposit accounts and business entity deposit accounts covered by the BSA and CBSA, respectively. Def.’s 56.1 ¶¶ 1–5; Pls.’ Resp. 56.1 ¶¶ 1–5. Therefore, it is not contradictory for the BSA and CBSA to have different notice requirements, as they apply to different types of bank customers. And, as the Court has previously found, Fla. Stat. § 670.501 permits contracting parties to amend the one-year notice period in UCC Article 4A. Supra Section III.A. ii. Thus, the contractual notice requirements are enforceable under Florida law, despite Plaintiffs’ argument otherwise. See Pls.’ Resp. at 12. Furthermore, the contracts between the Parties are neither illusory nor void as to public policy. Supra Section III.A.i.
The Court concludes based on Defendant's evidence—the actual BSA, CBSA, and bank statements, as well as affidavits from its employees—that the agreements between Plaintiffs and Defendant clearly delineate each Parties’ rights and obligations, and that there is no "actual, present need for declaration" from the Court. See Dickenson , 841 So. 2d at 599. Plaintiffs have not met their burden of presenting evidence that shows the existence of a genuine issue of material fact precluding summary judgment. See Bailey , 284 F.3d at 1243. Moreover, Defendant is correct that "the only determinations sought by Plaintiffs [in Count IV] are ... whether Plaintiffs are entitled a refund for the alleged unauthorized transactions or whether BB&T breach [sic] any agreement between the parties." Def.’s Mot. at 21. And, the Court has already answered both questions in the negative. See supra III.A.i–ii. Consequently, Defendant is entitled to judgment as a matter of law on Plaintiffs’ claim for declaratory relief. See Golden Crown Depot 2007, Inc. , 2013 WL 12094630, at *3 ("[A] petition seeking a declaratory judgment that alleges breach of duties and obligations under the terms of a contract and asks the court to declare those terms breached is nothing more than a petition claiming breach of contract.") (citing Eisenberg v. Standard Ins. Co. , No. 09-80199-CIV, 2009 WL 3667086, *2 (S.D. Fla. Oct. 26, 2009) ).
B. Plaintiffs’ Partial Motion for Summary Judgment
Plaintiffs move for summary judgment solely on Count II of their Amended Complaint. See generally Pls.’ Mot. Specifically, Plaintiffs argue that (1) BB&T cannot prove the payment orders were authenticated pursuant to § 670.202 ; (2) BB&T did not have commercially reasonable security procedures; (3) the payment orders were not accepted in good faith; and (4) Defendant did not comply with its own security procedures. Pls.’ Mot. at 5–17.
Because the Court concludes that the six (6) wire transfers in dispute were effective under § 670.202(2), the Court does not reach the question of whether the payment orders were authenticated under § 670.202(1).
In its Response, Defendant argues that (1) only Plaintiff Inversiones can maintain a claim under Article 4A; (2) Defendant's alleged conduct predating the funds transfers does not fall within the scope of Article 4A; (3) there is substantial evidence that the payment orders were authorized under § 670.202(1) ; (4) the payment orders were effective under § 670.202(3) ; and (5) Plaintiff Inversiones is barred from recovering under Article 4A because it failed to timely notify BB&T of the unauthorized transactions within the agreed-upon timeframe. Def.’s Resp. at 4–20.
Plaintiffs contend in reply that (1) all Plaintiffs are entitled to maintain a claim under Article 4A; (2) Defendant's alleged conduct falls squarely within the scope of Article 4A; (3) the payment orders were not authorized under § 670.202(1) ; (4) the payment orders were not effective under § 670.202(2) ; and (5) Plaintiffs are entitled to recovery as a matter of law. Pls.’ Reply at 1–10. The Court addresses each argument in turn.
As previously discussed, Chapter 670 of the Florida Statutes codifies Article 4A of the UCC, which governs funds transfers. § 670.101. Section 670.202 covers the authorization and verification of payment orders, while § 670.204 addresses the refund of payment and duty of a customer to report with respect to unauthorized payment orders. See §§ 670.202, 670.204. Under Florida's version of the UCC, "if a bank and its customer agree upon a ‘security procedure,’ ... and the procedure is commercially reasonable, a bank is absolved of liability ... if the bank, when processing an order to transfer the customer's funds, follows the security procedure in good faith." See Chavez , 701 F.3d at 897.
The Court reiterates that Plaintiffs’ papers are replete with conclusory statements of fact and law, only periodically citing to evidence in the record or legal authority. Thus, as the Court stated above, to the extent Plaintiffs’ Statement of Undisputed Facts includes facts not supported by citations to the record—or otherwise fails to comply with Local Rule 56.1—the Court will disregard such statements. See S.D. Fla. L.R. 56.1(c)–(d); see also Smith v. Forest River, Inc. , No. 2:19-CV-14174, 2020 WL 2105073, at *2 (S.D. Fla. Apr. 16, 2020), report and recommendation adopted , 2020 WL 2099435 (S.D. Fla. May 1, 2020), appeal dismissed , No. 20-12009-JJ, 2020 WL 7017843 (11th Cir. Oct. 2, 2020) ("The Court has discretion to disregard a factual assertion or dispute that is not properly supported.") (citing Fed. R. Civ. P. 56(e) ; L.R. 56.1(c), (d)). Similarly, any arguments unsupported by legal authority will not be addressed. See Haasbroek v. Princess Cruise Lines, Ltd. , 286 F. Supp. 3d 1352, 1362 (S.D. Fla. 2017) ("A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority or in the face of contrary authority, forfeits the point. The court will not do his research for him.").
As an initial matter, Plaintiffs argue that Defendant's alleged conduct before the unauthorized funds transfers falls squarely within the scope of Article 4A. Pls.’ Reply at 3–4. Plaintiffs once again point to no evidence in the record or legal authority supporting this argument. See generally id. Article 4A governs funds transfers, or the series of transactions "beginning with the originator's payment order" and ending with the "acceptance by the beneficiary's bank of a payment order for the benefit of the beneficiary of the originator's payment order." § 670.104(1). That is all. Defendant's alleged conduct—"[u]nilaterally, without verification, chang[ing] the Plaintiffs’ contact information"; "[f]ailing to verify the fraudulent e-mail that requested bank documents to activate the CMOL service"; and "[f]ailing to verify the fraudulent email that enclosed executed bank documents to activate the CMOL service"—does not fall within the scope of Article 4A, but rather within the scope of the Parties’ banking agreements. Pls.’ Reply at 3. And, the Court has already found that Defendant is entitled to judgment as a matter of law on Plaintiffs’ breach of contract claim. Supra Section III.A.i. Therefore, Plaintiffs have failed to meet their burden of showing that Defendant's conduct predating the six (6) wire transfers falls under Article 4A.
Next, Plaintiffs assert that all Plaintiffs are entitled to maintain a claim under Article 4A. See Pls.’ Reply at 1–3. Additionally, Plaintiffs argue that "contrary to Defendant's allegation that Article 4A deals only with ‘wholesale wire transfers’, book transfers or single transfers are also encompassed in § 670.101 et seq. Fla. Stat." Id. at 3 (internal citations omitted). However, as was the case with Plaintiffs’ Response to Defendant's Motion, Plaintiffs cite only to their Fourth Amended Complaint and the Official Comment to § 670.104 in support of their arguments. Id. at 2. Without more, Plaintiffs have not produced sufficient evidence that the eight (8) intra-account transfers were wire transfers. The Court finds that Plaintiffs have not met their burden of showing an "absence of a genuine issue as to any material fact" regarding all Plaintiffs’ ability to maintain an Article 4A claim, see Clark , 929 F.2d at 608, particularly since Defendant has produced declarations averring that the intra-account transfers were not wire transfers, and thus not within the scope of Article 4A. See Richendollar Decl. ¶¶ 32–40, 42. Accordingly, only Plaintiff Inversiones may maintain an action under Article 4A.
Additionally, Plaintiffs contend that the payment orders were not effective under § 670.202(2) because (1) BB&T did not have commercially reasonable security procedures; (2) the payment orders were not accepted in good faith; and (3) Defendant did not comply with its own security procedures. Pls.’ Mot. at 7–17. First, Plaintiffs argue that Defendant's security procedures were not commercially reasonable because "the bank failed to take into consideration the size, type and frequency of the Plaintiffs’ payment order." Id. at 10. Plaintiffs, in their argument, misunderstand Article 4A's intended audience. "Article 4A does not instruct the bank to consider the ‘size, type, and frequency’ of each payment order it receives in determining if those payment orders are potentially fraudulent; it instructs the court to consider these factors in determining if a bank's security procedure is commercially reasonable." See Choice Escrow , 754 F.3d at 619 (rejecting the plaintiff's argument that a commercially reasonable security procedure must differentiate between payment orders based on "size, type, and frequency") (emphasis added).
Plaintiffs make several other arguments purportedly relevant to their Article 4A claim, however, these arguments address BB&T's alleged contractual duties (i.e. BB&T's duty to safeguard Plaintiffs’ confidential information) and pre-transfer conduct, such as failing to designate the Plaintiffs’ accounts as "higher risk for fraud" or "implement[ing] heightened security procedures." Pls.’ Mot. at 8, 11. Therefore, they are irrelevant to the inquiry at hand: whether Defendant's Security Protocol for CMOL was commercially reasonable.
"[I]n other words, ... the commercial reasonableness of a bank's security procedure depends on whether that procedure is adequate to screen payment orders of the size, type, and frequency normally issued to the bank." Id. The record shows Defendant's security procedure did just that when BB&T's fraud monitoring system was triggered after the first wire transfer totaling $ 100,500.00 was initiated and its validity confirmed by a BB&T employee who called the international phone number linked to Plaintiffs’ account and spoke to an individual purporting to be Alixon. Def.’s 56.1 ¶ 40; Brinkley Decl. ¶¶ 5–9. Moreover, the Court found previously that (1) Defendant's Security Protocol satisfies § 670.201 ’s definition of a security procedure and (2) the Security Protocol follows the FFIEC's standards—particularly in its application of a two-factor authentication process involving something the "customer knows, something the customer has, and something the user is"—and is commercially reasonable. Supra Section III.A.ii.b.1–2 (quoting 2005 Guidance, at 3). And, "[t]he [commercial reasonableness] standard is not whether the security procedure is the best available. Rather it is whether the procedure is reasonable for the particular customer and the particular bank[.]" § 670.203 cmt. 4. Plaintiffs have failed to meet their burden of showing that Defendant's security procedure was not commercially reasonable.
Next, Plaintiffs maintain that (1) BB&T cannot meet the good faith requirement of § 670.202(2), and (2) BB&T failed to comply with its own security procedures. Pls.’ Mot. at 12–17. Once again, Plaintiffs focus their arguments on Defendant's alleged conduct and failures leading up to the unauthorized wire transfers, but neglect to address whether the payment orders were accepted in good faith and in compliance with CMOL's Security Protocol. See generally Pls.’ Mot. As the Court concluded above, the Experi-Metal Court's two-part fair dealing test proposed by Plaintiffs "would distort the balance of rights and obligations that Article 4A attempts to strike between the bank and its institutional customer" and is better suited to the holder in due course context. See Choice Escrow , 754 F.3d at 623. Further, the record clearly shows that CMOL's two-factor authentication process was successfully completed for all six (6) wire transfers. Def.’s 56.1 ¶ 39. Additionally, the two-factor authentication process was automated, meaning "the scope of the good-faith inquiry under Article 4A is correspondingly narrow." Choice Escrow , 754 F.3d at 623. Plaintiffs have not met their burden of showing that Defendant acted in a dishonest manner by accepting the payment orders or failed to comply with the Security Protocol's two-factor authentication process.
Finally, Plaintiffs argue that they are entitled to recovery as a matter of law and that Defendant's argument that "a bank[,] through agreement, can vary the time limit within which a customer must notify the bank of an unauthorized transaction ... is disingenuous." Pls.’ Reply at 9–10. Specifically, Plaintiffs assert that § 670.204 prohibits a bank from absolving itself from liability by agreement. Id. at 9.
However, as the Court discussed above, Article 4A's language is contradictory and unclear on this issue. Supra Section III.A.ii.a. Persuaded by Defendant's arguments in its Motion for Summary Judgment, the Court concluded that (1) the Parties were able to amend the one-year statutory notice period in § 670.505 by agreement; (2) the Parties did so in the 2013 TMA, modifying the notice period to thirty (30) days; (3) Plaintiffs were able to view their bank account statements online, thereby failing to rebut the presumption they received their statements; (4) Plaintiffs failed to notify Defendant of the unauthorized transaction within thirty (30) days as required by the TMA; and (5) Plaintiffs’ Article 4A claim was barred as untimely under § 670.505. Supra Section III.A.ii.a.
Consequently, Plaintiffs have failed to meet their burden of showing that no genuine issue of material fact exists regarding their entitlement to relief under Article 4A, and denial of Plaintiffs’ Motion for Summary Judgment as to Count II of the Fourth Amended Complaint is therefore warranted.
IV. CONCLUSION
Accordingly, UPON CONSIDERATION of the Motions, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Plaintiffs’ Motion for Summary Judgment as to Count II of the Fourth Amended Complaint (ECF No. 82) is DENIED and Defendant Branch Banking and Trust Company's Motion for Summary Judgment (ECF No. 101) is GRANTED. The Clerk of the Court is INSTRUCTED to TERMINATE Branch Banking and Trust Company as a Defendant.
The Final Pretrial Conference scheduled for March 30, 2021 and the Calendar Call scheduled for April 8, 2021 are cancelled and this case is removed from the April 12, 2021 trial docket. All pending motions, if any, are DENIED AS MOOT. Pursuant to Rule 58 of the Federal Rules of Civil Procedure, final judgment will be entered by a separate order.
DONE AND ORDERED in Chambers at Miami, Florida, this 29th day of March, 2021.