govinfo:USCOURTS-flsd-9_24-cv-80283-0

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO. 24-CV-80283-ROSENBERG 
 
CAROL E. DIGGES,  
 
Plaintiff, 
 
v. 
 
WELLS FARGO BANK, N.A.,  
 
Defendant. 
                                                         / 
 
ORDER GRANTING THE DEFENDANT’S MOTION TO DISMISS 
 
 THIS CAUSE is before the Court the Defendant’s Motion to Dismiss at docket entry 36.  
The Motion has been fully briefed.  For the reason set forth below, the Motion is granted.   
 This is a case about a wire transfer. DE 33 at  2.  The Plaintiff sold real property but, before 
the transaction could be finalize d, the computer system of the Pl aintiff’s title agent was hacked. 
Id.  As a result, the money that should have been  wired to the Plaintiff was instead wired to the 
unknown hacker. Id.  The Plaintiff has filed this suit against the bank that the hacker used to receive 
the wire transfer, Wells Fargo. Id.  The premise underlying the Plai ntiff’s suit, which is brought 
pursuant to Florida law, is that Defendant Wells  Fargo should have known that the wire transfer 
was not for the Plaintiff’s benefit and therefore should have refused to accept the wire transfer, 
because the name on the wire transfer (the Plaintiff’s name) did not match the account number on 
the wire transfer (the hacker’s account number). Id. 
 The Defendant has moved to dismiss the Plaintiff’s Third Amended Complaint on five 
grounds: (1) that the Defendant had no obligation under Florida law to determine if the wire 
transferee account name and account number did not match, (2) that the Defendant was permitted 
under Florida law to rely solely on the account numb er when accepting the wire transfer, (3) that 
the Third Amended Complaint does not allege that the name and account number corresponded to 
Case 9:24-cv-80283-RLR   Document 43   Entered on FLSD Docket 09/24/2024   Page 1 of 3
 
 
 
two different people, (4) that th e Third Amended Complaint does not  allege facts that establish 
that the Defendant had actual knowledge of a na me/account number mismat ch, and (5) that the 
Florida statute that the Plaintif f’s claim is premised upon does not apply when, as here, the wire 
transfer was processed by automated means.  In response, the Plaintiff does not respond to four of 
the Defendant’s five grounds for dismissal; the Plaintiff only responds to the Defendant’s fourth 
argument on whether the Plaintiff has pled actual knowledge. 
 Local Rule 7.1(c)(1) requires a party opposi ng a motion to file an opposing memorandum 
of law and also provides that “[f]ailure to do so  may be deemed sufficie nt cause for granting the 
motion by default.”  Moreover, “[f]ailure to re spond to arguments in a motion to dismiss is a 
sufficient basis to dismiss such claims by default under” the Local Rule. A1 Procurement, LLC v. 
Hendry Corp., No. 11-23582-CIV, 2012 WL 6214546, at *3 (S.D. Fla. Dec. 13, 2012).  A response 
to a motion that does not address all the arguments in the motion fails to comply with Local Rule 
7.1. Id.  For these reasons, the Plaintiff’s failure to respond to four of the Defendant’s five grounds 
for dismissal (which are persuasively supported w ith citations to on-point authority) is alone a 
sufficient basis to grant the Motion. 
 As for the one ground that the Plaintiff does respond to—whether the Plaintiff has alleged 
that the Defendant had actual knowledge that the account name and number did not match—the 
Court agrees with the Defendant that the Plaintiff has failed to plausibly allege the same.  See Fla. 
Stat. § 670.207; Peter E. Shapiro, P.A. v. Wells Fargo Bank, N.A., 352 F. Supp. 3d 1232-33 (S.D. 
Fla. 2018) (“[I]information stor ed within a bank’s computer system does not create actual 
knowledge or a duty to investigate.”).  Simply stated, the Plaintiff cannot allege actual knowledge 
based upon information in the Defendant’s computer systems—the Plaintiff can only allege actual 
knowledge based upon specific knowledge that a person employed by the bank possessed. Id.  This 
the Plaintiff has not done. 
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 The Plaintiff has now had three opportunities to plead an actionable claim, and this is the 
third time in succession that the Court has dismissed the Plaintiff’s pleading.  As the Plaintiff has 
been afforded adequate opportunity  to amend, and given that this case is now greater than six 
months old, the Court’s dismissal is now without leave to amend.  
For the foregoing reasons, it is ORDERED AND ADJUDGED that the Defendant’s 
Motion to Dismiss [DE 36] is GRANTED, the Plaintiff’s Third Amended Complaint is 
DISMISSED WITHOUT LEAVE TO AMEND, and the Clerk of the Court shall CLOSE THIS 
CASE.  
 DONE AND ORDERED  in Chambers, West Palm Beach, Florida, this 24th day of 
September, 2024. 
       _______________________________                              
Copies furnished to:     ROBIN L. ROSENBERG 
Counsel of record     UNI TED STATES DISTRICT JUDGE 
Case 9:24-cv-80283-RLR   Document 43   Entered on FLSD Docket 09/24/2024   Page 3 of 3

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