UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

CARNELL SMITH, on behalf of 

himself and all others similarly situated

LENOX MAGEE, on behalf of himself 

and all others similarly situated

Plaintiffs, 

vs. 

FIFTH THIRD BANK

Defendant. 

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 Case Nos. 1:18-cv-464 

 1:18-cv-722 

 

Judge Timothy S. Black 

Magistrate Judge Stephanie K. Bowman 

 

DECISION AND ENTRY 

ADOPTING THE REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 83) 

This case is before the Court pursuant to the Order of General Reference to United 

States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the 

Magistrate Judge reviewed the pleadings filed with this Court and, on April 18, 2019, 

submitted a Report and Recommendation recommending that the Court grant in part and 

deny in part Defendant Fifth Third Bank (“Fifth Third”)’s motion to dismiss Plaintiff 

Carnell Smith’s amended complaint (Doc. 55) and motion to dismiss Plaintiff Lenox 

Magee’s complaint (Doc. 70). (Doc. 83). More specifically, the Magistrate Judge 

recommended denying both motions to dismiss with respect to Plaintiffs’ claims that 

Fifth Third improperly charged fees for “balance inquiries” made using out-of-network 

ATMs. (Id.). Fifth Third filed objections to that portion of the Report and 
2 

Recommendation (Doc. 87), to which Plaintiffs filed a joint response (Doc. 97) as well as 

a notice of supplemental authority (Doc. 98). 

I. Background 

This action consists of two consolidated lawsuits; one filed by Plaintiff Carnell 

Smith and another filed by Plaintiff Lenox Magee. (See Doc. 64). Both cases were filed 

as putative class actions, and both assert breach of contract claims alleging that 

Defendant Fifth Third improperly charged a $2.75 fee for balance inquiries at out-ofnetwork ATMs. (Docs. 1, 52). Plaintiffs attached to their pleadings Fifth Third’s 

Deposit Account Rules and Regulations, as well as Fifth Third’s Debit Card Disclosure 

and Card Agreement, which together constitute the “Agreement” between Plaintiffs and 

Defendant. (See Docs. 52-1, 52-2).1

 In their respective complaints, Plaintiffs argue that a 

balance inquiry is not a “transaction” subject to the “transactions” fees noticed in the 

Agreement. Plaintiffs alternatively argue that a balance inquiry made in conjunction with 

a withdrawal of funds should be viewed as a single transaction, with a single $2.75 fee 

assessed. 

The Agreement contains the following general language regarding fees that may 

be imposed in relation to the use of an ATM: 

Fees: We reserve the right to impose a fee and to charge fees 

upon notice to you. A fee may be imposed by an automated 

teller machine (ATM), and by any network used to complete 

 

1

 Plaintiff Magee specifically claims that he made balance inquiries without an accompanying 

withdrawal of funds at out-of-network ATMs, but was nevertheless charged the $2.75 fee. (See 

Doc. 83 at 3). 
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the transaction, when you initiate an electronic fund transfer 

or make a balance inquiry. 

(Doc. 52-1 at 23). Elsewhere in the Agreement is an accountholder’s agreement “to pay 

all fees we charge in connection with the Electronic Banking services you obtain.” (Doc. 

52-2 at ¶ 8). The term “Electronic Banking” is defined in the Agreement as “services that 

allow you to access the Account using ATMs . . . to make deposits, transfers or 

withdrawals to or from the Account.” (Id. at 2). In addition, the Agreement includes a 

“fee schedule” listing a $2.75 fee “for U.S. transactions” and noting that “[o]ther ATM 

network owners may also assess a usage fee.” (Doc. 52-1 at 28). A “2.75 [fee] per 

transaction” for any “Non-Fifth Third ATM transaction[s]” is similarly noted in the Debit 

Card Disclosure Agreement. (Doc. 52-2 at ¶ 8). 

 Defendant Fifth Third filed two motions to dismiss aimed at each of the Plaintiff’s 

complaints. (Docs. 55, 70). The Magistrate Judge issued a Report and Recommendation 

recommending that the Court grant in part and deny in part Defendants’ motions to 

dismiss, finding that the Court should deny the motions with respect to Plaintiffs’ claims 

asserting breach of contract for improperly charging a $2.75 “transaction” fee for balance 

inquiries. (Doc. 83 at 27). In doing so, the Magistrate Judge found that in reviewing the 

Agreement as a whole, the term “transaction” is “at least” ambiguous as to whether the 

term encompasses balance inquiries. (Id. at 7-14). Defendant filed objections to this 

portion of the Report and Recommendation (Doc. 87), which the Court will address in 

turn. 
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II. Defendant’s objections 

First, Defendant states generally that the Magistrate Judge did not “fully consider” 

certain provisions contained in the Agreement that “identif[y] a balance inquiry as a 

separate transaction from a funds transfer.” (Doc. 87 at 5 n.6). Defendant specifically 

refers to certain provisions in the Agreement governing fees that may be imposed by third 

parties (not Fifth Third), which expressly mention potential fees associated with balance 

inquiries. 

One such provision that Defendant notes is the statement from the Rules and 

Regulations that: 

Fifth Third “reserve[s] the right to impose a fee and to charge 

fees upon notice to you. A fee may be imposed by an 

automated teller machine (ATM), and by any network 

used to complete the transaction, when you initiate an 

electronic fund transfer or make a balance inquiry.” 

(Doc. 52-1 at 20) (emphasis added). Defendant also points to the following language 

from the Debit Card Agreement: “when you use an ATM not owned by us, you may be 

charged a fee by the ATM operator or any network used (and you may be charged a fee 

for a balance inquiry even if you do not complete a fund transfer).” (Doc. 52-2 at ¶ 19). 

Defendant concedes that these references to balance inquiries refer to fees charged 

by ATM operators and other networks (not Fifth Third), but argues that the Magistrate 

Judge should have found that balance inquiries are generally treated as separate 

transactions under the Agreement, because courts should examine the contract as a 

whole. (Doc. 87 at 5, 5 n.6). 
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This first objection is not well-taken. Rather than identify an error in the 

Magistrate Judge’s reasoning, Defendant merely registers its disagreement with that 

reasoning. The Report and Recommendation properly recognizes that “courts should 

examine the contract as a whole” and “look to the plain and ordinary meaning of the 

language used in the contract.” (Doc. 83 at 7). In examining the portions of the 

Agreement excerpted above, the Magistrate Judge reasoned that because the portions of 

the agreement dealing with third-party fees discuss balance inquiries as independent 

transactions that may incur fees, but the sections regarding Fifth Third’s own fees do not 

expressly mention fees for balance inquiries, “a plausible construction of the language is 

that [the Agreement] warns Fifth Third customers that they may be charged for a balance 

inquiry by an ATM operator even though a balance inquiry is not a traditional 

‘transaction’ in the way that an ‘electronic fund transfer’ falls within that definition.” 

(Id. at 11). Thus, the Magistrate Judge applied basic principles of contract interpretation 

to reject Defendant’s argument that the third-party fee language warrants a general 

understanding under the Agreement that a balance inquiry is an independent type of 

transaction to which fees may attach. 

Second, Defendant objects to the Magistrate Judge’s finding that “a consumer 

might reasonably equate the three terms: electronic banking services, electronic funds 

transfer, and transaction.” (Doc. 87 at 6-7) (emphasis added). The Agreement states that 

customers agree to pay fees “in connection with Electronic Banking services.” (Doc. 52-

2 at ¶ 8) (emphasis added). The Agreement defines “electronic banking” as “services that 
6 

allow you to access the Account using ATMs . . . to make deposits, transfers or 

withdrawals . . . .” (Id. at 2). The Magistrate Judge reasoned that because customers 

agree to pay fees for “electronic banking services,” which is limited by definition to 

accessing one’s account to “made deposits, transfers or withdrawals,” and because 

“transaction” is not defined, a customer may reasonably have the impression that the term 

“transaction” is similarly limited to deposits, transfers, or withdrawals. (Doc. 83 at 8). 

Defendant disagrees, arguing that because “electronic banking” is defined as 

services that allow account access to engage in certain transactions (i.e. deposits, 

transfers, or withdrawals), this leads to the conclusion that by agreeing to pay fees 

associated with “electronic banking services,” a customer is agreeing to pay fees for any 

number of “transactions” he engages in after accessing his account, including making a 

balance inquiry. (Id. at 7). Even assuming that the list of transactions a customer may 

engage in after accessing his account through electronic banking (i.e. making deposits, 

transfers, or withdrawals) is non-exhaustive, Defendant does not explain its logical leap 

that such “transactions” would necessarily include balance inquiries. Thus, Defendant’s 

criticism does not refute the core of the Magistrate Judge’s finding that the definition of 

electronic banking—as services allowing account access “to make deposits, transfers or 

withdrawals”— may inform a customer’s understanding of the undefined term 

“transaction.” 
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Third, Defendant objects to the Magistrate Judge’s citation to the Electronic Funds 

Transfer Act as irrelevant. (Doc. 87 at 7-8). However, this argument is not persuasive, 

as Judge Bowman’s reliance on the Act was not essential to the Judge’s ultimate finding 

that the term “transaction” in the Agreement is ambiguous. (Doc. 83 at 11 n.11-12; Doc. 

87 at 7-8). Moreover, the Magistrate Judge expressly acknowledged that the Court’s 

analysis was limited to the four corners of the Agreement and referred to the Act in 

recognition of the highly regulated industry at issue—providing context for the court’s 

analysis. (Doc. 83 at 11 n.11). 

Fourth, Defendant puts forth several definitions of “transaction” from Black’s Law 

Dictionary and Merriam-Webster’s Dictionary that are more favorable to its 

interpretation than the definitions noted in the Report and Recommendation. (Doc. 87 at 

8-9). However, the Court agrees with Plaintiffs’ position that these multiple, differing 

definitions support rather than contradict the Magistrate Judge’s finding of ambiguity 

with respect to the term “transaction.” (See Doc. 97 at 8-9). 

III. Conclusion 

 As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has 

reviewed the comprehensive findings of the Magistrate Judge and considered de novo 

all of the filings in this matter. Upon consideration of the forgoing, the Court does 

determine that the Report and Recommendation (Doc. 83) should be and is hereby 

ADOPTED in its entirety. 

 Accordingly, for the reasons stated above: 
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1) Fifth Third’s motion to dismiss Plaintiff Smith’s amended complaint (Doc.

55) and motion to dismiss Plaintiff Magee’s complaint (Doc. 70) are

GRANTED in part and DENIED in part as follows:

a. Fifth Third’s motions (Docs. 55, 70) are GRANTED with respect to

Plaintiff Smith’s international transaction claims and Plaintiff

Magree’s ICFA and unjust enrichment claims; those claims are

dismissed without prejudice;

b. Fifth Third’s motions (Docs. 55, 70) are DENIED with respect to

both Plaintiffs’ “balance inquiry” claims; those claims shall proceed.

IT IS SO ORDERED. 

Date: 8/28/2019 /s/ Timothy S. Black 

Timothy S. Black

United States District Judge