United States District Court 

for the 

Southern District of Florida 

Antonio Pastor, Plaintiff,

v. 

Bank of America, N.A., Defendant. 

)

) 

) 

) 

) 

Civil Action No. 22-24121-Civ-Scola 

Order on Motion to Dismiss 

This matter is before the Court on the Defendant Bank of America, N.A.’s 

(“BANA”) amended motion to dismiss the Plaintiff Antonio Pastor’s complaint 

under Federal Rule of Civil Procedure 12(b)(6). (Mot., ECF No. 4.) Pastor has 

responded to the motion, and BANA has replied. (Resp., ECF No. 11; Reply, 

ECF No. 17.) Having reviewed the record, the parties’ briefs, and the relevant 

legal authorities, the Court grants the motion. (Mot., ECF No. 4.) 

1. Background1 

Pastor, a foreign citizen from Venezuela, was the owner of an account 

with BANA that contained his entire life savings. (Compl. ¶ 6, ECF No. 19-1.) 

Sometime around March 2022, Pastor received a communication from BANA 

informing him that his account was being closed. (Id. ¶¶ 5–6.) BANA proceeded 

to close Pastor’s account and sent Pastor a check for the funds contained 

therein. (Id. ¶¶ 8–9.) However, Pastor never received the check from BANA. (Id. 

¶¶ 10, 12.) After waiting about four months for the check to arrive, as 

instructed by BANA, Pastor contacted BANA to inform it that the check must 

have been sent to a wrong address in Venezuela. (Id. ¶¶ 9, 11, 13.) However, 

BANA ignored Pastor, simply informing him that the check had been disbursed. 

(Id. ¶ 13.) 

Based on the foregoing, Pastor filed suit against BANA in the Circuit 

Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, 

alleging claims for negligence and breach of fiduciary duty. On December 20, 

2022, BANA removed the action to this Court based on diversity jurisdiction. 

(ECF Nos. 1, 18-20.) 

1 This background is based on the allegations in Pastor’s complaint. For the purposes of 

evaluating BANA’s motion, the Court accepts Pastor’s factual allegations as true and construes 

the allegations in the light most favorable to him per Federal Rule of Civil Procedure 12(b)(6). 

Case 1:22-cv-24121-RNS Document 21 Entered on FLSD Docket 03/27/2023 Page 1 of 5
2. Legal Standard 

A court considering a motion to dismiss, filed under Federal Rule of Civil 

Procedure 12(b)(6), must accept all of the complaint’s allegations as true, 

construing them in the light most favorable to the plaintiff. Pielage v. 

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need 

only contain a short and plain statement of the claim showing that the pleader 

is entitled to relief, a plaintiff must nevertheless articulate “enough facts to 

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 570 (2007). “But where the well-pleaded facts do not permit the 

court to infer more than the mere possibility of misconduct, the complaint has 

alleged—but it has not shown—that the pleader is entitled to relief.” Ashcroft v. 

Iqbal, 556 U.S. 662, 679 (2009) (quoting Fed. R. Civ. P. 8(a)(2)) (internal 

punctuation omitted). A court must dismiss a plaintiff’s claims if she fails to 

nudge her “claims across the line from conceivable to plausible.” Twombly, 550 

U.S. at 570.

3. Discussion 

BANA argues that Pastor’s negligence and breach of fiduciary claims are 

barred by Florida’s independent tort doctrine and that Pastor fails to allege the 

existence of a duty in support of either claim. The Court agrees. 

Florida’s “independent tort doctrine bars recovery in tort for actions that 

challenge a breach of contract[.]” Stepakoff v. IberiaBank Corp., No. 22-cv20286-BLOOM/Otazo-Reyes, 2022 U.S. Dist. LEXIS 197827, at *13-14 (S.D. 

Fla. Oct. 31, 2022) (Bloom, J.) (quoting Perez v. Scottsdale Ins. Co., 19-cv22346-GAYLES, 2020 U.S. Dist. LEXIS 21192, 2020 WL 607145, at * 2 (S.D. 

Fla. Feb. 7, 2020) (Gayles, J.)). In other words, the doctrine prohibits a 

claimant from “repackag[ing] [ ] breach of contract claims as independent 

actions in tort.” Id. (quoting Dorvil v. Nationstar Mortg. LLC, 17-cv-23193-

MARTINEZ, 2019 U.S. Dist. LEXIS 52175, 2019 WL 1992932, at *17 (S.D. Fla. 

Mar. 26, 2019) (Martinez, J.)); see also Spears v. SHK Consulting & Dev., Inc., 

338 F. Supp. 3d 1272, 1279 (M.D. Fla. 2018) (“District courts in Florida have 

thus held that it is well settled that a plaintiff may not recast causes of action 

that are otherwise breach-of-contract claims as tort claims.” (cleaned up)).

“Therefore, to set forth a claim in tort between parties in contractual privity, a 

party must allege action beyond and independent of breach of contract that 

amounts to an independent tort.” Kaye v. Ingenio, Filiale De Loto-Quebec, Inc., 

No. 13-61687-CIV-ROSENBAUM/HUNT, 2014 U.S. Dist. LEXIS 73180, at *11-

14 (S.D. Fla. May 29, 2014) (Rosenbaum, J.) (dismissing plaintiff’s fraudulent 

Case 1:22-cv-24121-RNS Document 21 Entered on FLSD Docket 03/27/2023 Page 2 of 5
inducement claim because it was “precisely the same as a potential breach-ofcontract claim”). 

Here, it is impossible to separate Pastor’s negligence and breach of 

fiduciary duty claims from his underlying contractual relationship with BANA.

In his negligence count, Pastor alleges that BANA owed him a duty of care as a 

“customer” and that BANA owed him “a duty of care to safeguard, manage, 

monitor, maintain, supervise and control [his] life’s savings account.” (Compl. 

¶¶ 18–19, ECF No. 19-1.) Pastor also alleges that BANA breached its duty by 

“clos[ing] the account without [his] consent” and “sen[ding] a check . . . to the 

wrong address.” (Id. ¶ 20.) Similarly, in his breach of fiduciary duty count, 

Pastor alleges that because he “was [BANA’s] costumer and [BANA] was in 

possession and control of [his] life savings, [BANA] owes [him] a fiduciary duty 

of care.” (Id. ¶¶ 25–26.) However, it is well settled that, under Florida law, “[t]he 

relationship between a bank and the holder of a deposit account is 

contractual.” Carl v. Republic Sec. Bank, 282 F. Supp. 2d 1358, 1365 (S.D. Fla. 

2003) (Hurley, J.) (citing MJZ Corp. v. Gulfstream First Bank & Trust, N.A., 420 

So.2d 396, 397 (Fla. 4th DCA 1981)); see also, e.g., Megaval Enters.., Ltd v. 

Bank of Am., N.A., No. 14-20909-CIV-WILLIAMS, 2014 U.S. Dist. LEXIS 

200652, at *11 (S.D. Fla. Oct. 7, 2014) (Williams, J.) (“[T]he relationship 

between a bank and a customer is ‘created and defined’ by the contractual 

arrangements entered into when an account is opened.”). Thus, because 

Pastor’s claims are inextricably dependent on the duties he was owed as a 

customer and owner of an account with BANA, he has failed to allege that 

BANA “committed [a] breach of duty independent of a breach of its contractual 

obligations.” See Reagan Wireless Corp. v. Apto Sols., Inc., No. 18-cv-61147, 

2018 U.S. Dist. LEXIS 173177, at *7 (S.D. Fla. Oct. 5, 2018) (Bloom, J.)

(quoting Freeman v. Sharpe Res. Corp., 2013 U.S. Dist. LEXIS 72288, 2013 WL 

2151723, at *8 (M.D. Fla. May 16, 2013)). 

In his response in opposition to BANA’s motion to dismiss, Pastor 

counters that his claims are not based on contract because “the moment that 

[BANA] closed the account and decided to send Mr. Pastor’s lifelong savings in 

a cashier’s check to an address of record, the contractual relationship between 

[the parties] ended.” (Resp. 3, ECF No. 11.) Thus, he reasons, “once the 

account was closed, as pled in the Complaint, a common law duty arose 

between [BANA] and its former customer[.]” (Id. at 4.) However, Pastor fails to 

further define the post-contractual common law duty upon which his claims 

purportedly depend, and, indeed, he provides no case law in support of the 

existence of such a duty. More importantly, his arguments are directly 

contradicted by the allegations in his complaint, which unambiguously state 

Case 1:22-cv-24121-RNS Document 21 Entered on FLSD Docket 03/27/2023 Page 3 of 5
that he was owed a duty of care because he was a customer of and the owner of 

an account with BANA. (See generally Compl. ¶¶ 15–29, ECF No. 19-1.) 

Finally, Pastor also fails to independently allege that BANA owed him a 

fiduciary duty. “To establish a fiduciary relationship, a party must allege some 

degree of dependency on one side and some degree of undertaking on the other 

side to advise, counsel, and protect the weaker party.” Jaffe v. Bank of Am., 

N.A., 667 F. Supp. 2d 1299, 1319 (S.D. Fla. 2009) (quoting Watkins v. NCNB 

Nat’l Bank, N.A., 622 So. 2d 1063, 1065 (Fla. 3d DCA 1993)). “Among other 

things, there must be ‘circumstances exceeding an ordinary commercial 

transaction.’” Id. (quoting Motorcity of Jacksonville, Ltd. v. Se. Bank N.A., 83 

F.3d 1317, 1339 (11th Cir. 1996)). Pastor’s complaint does not allege any 

circumstances that could be construed to support the existence of anything 

other than an ordinary, arms-length relationship between him and BANA. 

Furthermore, Pastor does not specifically address the existence of a fiduciary 

relationship in his response in opposition to BANA’s motion to dismiss. 

4. Conclusion

Accordingly, for the reasons stated above, the Court grants BANA’s 

motion to dismiss the complaint (Mot., ECF No. 4), thus dismissing Pastor’s 

case with prejudice.

Additionally, the Court dismisses Pastor’s complaint without leave to 

amend. Pastor has not requested leave to amend; nor has he indicated any 

inclination to do so. See Wagner v. Daewoo Heavy Industries Am. Corp., 314 

F.3d 541, 542 (11th Cir. 2002) (“A district court is not required to grant a 

plaintiff leave to amend his complaint sua sponte when the plaintiff, who is 

represented by counsel, never filed a motion to amend nor requested leave to 

amend before the district court.”); Avena v. Imperial Salon & Spa, Inc., 740 F. 

App’x 679, 683 (11th Cir. 2018) (“[W]e’ve rejected the idea that a party can 

await a ruling on a motion to dismiss before filing a motion for leave to 

amend.”); compare with Carter v. HSBC Mortg. Services, Inc., 622 F. App’x 783, 

786 (11th Cir. 2015) (“A pro se plaintiff, however, must be given at least one 

chance to amend the complaint before the district court dismisses the action 

with prejudice, at least where a more carefully drafted complaint might state a 

claim.”) (cleaned up) (emphasis in original). 

Finally, the Clerk is directed to close this case. 

Case 1:22-cv-24121-RNS Document 21 Entered on FLSD Docket 03/27/2023 Page 4 of 5
Done and ordered in Miami, Florida, on March 27, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge 

Case 1:22-cv-24121-RNS Document 21 Entered on FLSD Docket 03/27/2023 Page 5 of 5