United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
RICHARD MARK GERGET UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Defendant Bank of America's
motion to dismiss Plaintiff Song Chuan Technology's claim
against Bank of America for conversion, and Song Chuan's
motion to amend the complaint to remove its claim for
injunctive relief, to add a claim under South Carolina Code
§ 36-4A-101, and to add a claim for constructive trust.
For the reasons set forth below, the Court grants the motion
to dismiss, and grants in part and denies in part the motion
to amend the complaint. The motion to amend is granted
insofar as Song Chuan seeks to dismiss its first cause of
action seeking injunctive relief and seeks to allege personal
jurisdiction over the parties. The motion to amend is
otherwise denied. Bank of America is dismissed from this
action, and all other claims are dismissed without prejudice.
September 30, 2016, Song Chuan filed a complaint alleging
Song Chuan and a business partner (whom Song Chuan declines
to identify, but who apparently is the Kansas-based
"Meridian Chemicals Sales" identified in the wire
transfer documentation attached to the complaint,
see Dkt. No. 1-1) negotiated a sale of goods (which
Song Chuan declines to identify) for $880, 000. (See
Dkt. No. 1 ¶¶ 9-14.) According to the complaint, an
"advisor" located in Charleston, South Carolina
(whom Song Chuan declines to identify) served as an
intermediary for negotiations between Song Chuan and the
business partner for the sale of the unidentified goods.
(Id. % 10.) "At some point during the course of
th[ese] negotiations, " an unknown person allegedly
hacked into Song Chuan's email account, and, posing as
the business partner, transmitted his own Bank of America
account details to Song Chuan to obtain fraudulently the sale
proceeds due the business partner. (Id. ¶ 11.)
On or about September 14, 2016, Song Chuan wired $880, 000 to
John Doe's Bank of America account, believing the funds
were being sent to its business partner. (Id. ¶
15.) Song Chuan seeks to recover those funds from Bank of
America, and damages, including treble damages, from John
November 10, 2016, Bank of America moved to dismiss Song
Chuan's conversion claim. (Dkt. No. 11.) On February 1,
2017, Song Chuan moved to amend the complaint to add an
allegation of personal jurisdiction over the parties, to
remove a claim for injunctive relief against Bank of America,
and to add statutory and constructive trust claims against
Bank of America.
Motion to Dismiss
12(b)(6) of the Federal Rules of Civil Procedure permits the
dismissal of an action if the complaint fails "to state
a claim upon which relief can be granted." Such a motion
tests the legal sufficiency of the complaint and "does
not resolve contests surrounding the facts, the merits of the
claim, or the applicability of defenses. . . . Our inquiry
then is limited to whether the allegations constitute 'a
short and plain statement of the claim showing that the
pleader is entitled to relief" Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)
(quotation marks and citation omitted). In a Rule 12(b)(6)
motion, the Court is obligated to "assume the truth of
all facts alleged in the complaint and the existence of any
fact that can be proved, consistent with the complaint's
allegations." E. Shore Mkts., Inc. v. J.D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
However, while the Court must accept the facts in a light
most favorable to the non- moving party, it "need not
accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Id.
survive a motion to dismiss, the complaint must state
"enough facts to state a claim to relief that is
plausible on its face." BellAtl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although the
requirement of plausibility does not impose a probability
requirement at this stage, the complaint must show more than
a "sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A complaint has "facial plausibility"
where the pleading "allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id.
B. Motion to Amend
Rule 15(a)(2) of the Federal Rules of Civil Procedure, after
the time has passed to amend a pleading as a matter of
course, "a party may amend its pleading only with the
opposing party's written consent or the court's
leave. The court should freely give leave when justice so
requires." Rule 15(a) is a "liberal rule [that]
gives effect to the federal policy in favor of resolving
cases on their merits instead of disposing of them on
technicalities." Laber v. Harvey, 438 F.3d 404,
426 (4th Cir. 2006) (en banc). However, "[m]otions to
amend are committed to the discretion of the trial
court." Keller v. Prince George's County,
923 F.2d 30, 33 (4th Cir. 1991). Thus, "[a] district
court may deny a motion to amend when the amendment would be
prejudicial to the opposing party, the moving party has acted
in bad faith, or the amendment would be futile."
Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d
597, 602-03 (4th Cir. 2010).
is apparent if the proposed amended complaint fails to state
a claim under the applicable rules and accompanying
standards: "[A] district court may deny leave if
amending the complaint would be futile-that is, if the
proposed amended complaint fails to satisfy the requirements
of the federal rules." United States ex rel. Wilson
v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376
(4th Cir.2008) (internal quotation marks omitted). "If
an amendment would fail to withstand a motion to dismiss, it
is futile." Woods v. Boeing Co., 841 F.Supp.2d
925, 930 (D.S.C. 2012). "Therefore, if any new
well-pleaded facts are asserted in the new proposed
complaint, but they fail to show that the plaintiff is
entitled to relief, the court should deny the motion for
leave to amend." In re: Bldg. Materials Corp. of Am.
Asphalt Roofing Shingle Prod. Liab. Litig., No.
8-11-2000-JMC, 2013 WL 12152414, at *2 (D.S.C. June 17,