United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER 
G. CORNELIUS U.S. MAGISTRATE JUDGE
pending is the partial motion to dismiss filed by defendant,
Vantiv, Inc. (Doc. 11). The motion has been fully briefed and
is ripe for adjudication. (See Docs. 15-16). For the
reasons that follow, the motion is due to be granted, and
aside from TFO's claim for breach of contract, all claims
asserted in the complaint are due to be dismissed.
STANDARD OF REVIEW
Rule of Civil Procedure 8(a)(2) requires only 'a short
and plain statement of the claim showing that the pleader is
entitled to relief, ' in order to 'give the defendant
fair notice of what the … claim is and the grounds
upon which it rests.'" Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). Rule 8 "does not
require 'detailed factual allegations, ' but it
demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation." Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). "A pleading that
offers 'labels and conclusions' or 'a formulaic
recitation of the elements of a cause of action will not
do.'" Id. at 678 (quoting Twombly,
550 U.S. at 555, 557) (internal quotation marks omitted).
survive a motion to dismiss for failure to state a claim on
which relief may be granted brought pursuant to Rule
12(b)(6), "a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief
that is plausible on its face.'" Id.
(quoting Twombly, 550 U.S. at 570). "A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. (citing Twombly, 550
U.S. at 556). "The plausibility standard is not akin to
a 'probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully." Id. "Where a complaint pleads
facts that are 'merely consistent with' a
defendant's liability, it 'stops short of the line
between possibility and plausibility of 'entitlement to
relief.'" Id. (quoting Twombly,
550 U.S. at 557).
a business that entered into a contractual agreement with
Vantiv, whereby Vantiv agreed to process credit and debit
card payments made by TFO's customers. (Doc. 1 at 2). The
complaint alleges that, beginning in April 2016, Vantiv
"failed to properly process credit or debit card
transactions." (Id.). Slightly more
specifically, the complaint alleges Vantiv has failed to
credit TFO with money from its customers' purchases.
(Id.). TFO also contends Vantiv began and continues
to "re-run" its customers' card transactions,
causing TFO's customers to be double charged for
purchases. (Id. at 2-3). As a result, TFO alleges it
has suffered, both because its customers blame it for double
charging and because TFO has lost business as a result of its
decision to cease accepting credit card payments.
(Id. at 3).
these facts, the complaint asserts claims for breach of
contract, fraud, money had and received, unjust enrichment,
negligence, and wantonness. (Id. at 3-6).
Vantiv's motion seeks dismissal of all claims except
breach of contract. (Doc. 11). In response, TFO concedes
dismissal is appropriate regarding its claims for money had
and received, unjust enrichment, and negligence; however, TFO
opposes dismissal as to its other claims. (Doc. 15 at 1).
Accordingly, the only claims at issue are TFO's claims
for fraud and wantonness. Each claim is addressed in turn.
moves to dismiss TFO's fraud claim on two grounds. First,
Vantiv contends TFO has merely attempted to re-cast its
breach of contract claim as a fraud claim. (Doc. 11-1 at 3).
Next, Vantiv argues TFO has failed to plead its fraud claim
with the particularity required under Rule 9(b) of the
Federal Rules of Civil Procedure. (Id. at
The elements of fraud are (1) a false representation (2) of a
material existing fact (3) relied upon the plaintiff (4) who
was damaged as a proximate result of the alleged
misrepresentation. Earnest v. Pritchett-Moore, Inc.,
401 So.2d 752 (Ala. 1981). If the fraud is based upon a
promise to perform or abstain from performing some act in the
future, two additional elements must be proved: (1) the
defendant's intention, at the time of the alleged
misrepresentation, not to do the act promised, coupled with
(2) an intent to deceive. Clanton v. Bains Oil Co.,
417 So.2d 149 (Ala. 1982).
P & S Bus., Inc. v. S. Cent. Bell Tel. Co., 466
So.2d 928, 930 (Ala. 1985). Additionally, a "mere breach
of  contract is not sufficient to support a charge of
fraud" under Alabama law. McAdory v. Jones, 71
So.2d 526, 528 (Ala. 1954). Courts sitting in this district
have held that, in order to state a cognizable fraud claim
under Alabama law, the conduct alleged must be independent
from a breach of contract. Stone v. Koch Farms of
Gadsden, LLC, No. 12-3777-RBP, 2013 WL 121477, at *2-3
(N.D. Ala. Jan. 8, 2013); Townson v. Koch Farms,
LLC, No. 13-1703-VEH, 2014 WL 1618376, at *2 (N.D. Ala.
Apr. 22, 2014) (quoting Justice Houston's concurring
opinion in Hunt Petroleum Corp. v. State, 901 So.2d
1, 11 (Ala. 2004)); see also Brown-Marx Assocs., Ltd. v.
Emigrant Sav. Bank, 703 F.2d 1361, 1370-71 (11th Cir.
1983) ("Failure to perform a promise is not of itself
adequate evidence of intent to support an action for fraud. A
mere breach of a contractual provision is not sufficient to
support a charge of fraud.") (citations omitted).
at the motion to dismiss stage, the Eleventh Circuit has held
that the heightened pleading standard under Rule 9(b)
requires a plaintiff to allege "(1) the precise
statements, documents, or misrepresentations made; (2) the
time, place, and person responsible for the statement; (3)
the content and manner in which these statements misled the
Plaintiffs; and (4) what the defendants ...