Exhibit A — In re Bank of America California Unemployment Benefits Litigation (Dkt. 108-2, S.D. Cal. No. 3:21-md-02992)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 108-2 · 2022-09-07 · Docket on CourtListener

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EXHIBIT  
A 
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Exhibit A 
-1-
Hardin v. Bank of America, N.A., Slip Copy (2022) 
2022 WL 3568568 
Only the Westlaw citation is currently available. 
United States District Court, E.D. 
Michigan, Southern Division. 
Raymond HARDIN, et al., Plaintiffs, 
V. 
BANK OF AMERICA, N.A., Defendant. 
Case No. 2:22-cv-10023 
I 
Signed August 18, 2022 
Attorneys and Law Firms 
Joshua B. Swigart, Swigart Law Group, APC, San Diego, 
CA, Aaron J. Scheinfield, Goldstein Bershad & Fried PC, 
Southfield, MI, for Plaintiffs. 
James W. McGarry, Goodwin Proctor, Boston, MA, Yvonne 
W. Chan, Jones Day, Boston, MA, Joseph H. Hickey, Dykema 
Gossett, Bloomfield Hills, MI, for Defendant. 
OPINION AND ORDER GRANTING MOTION TO 
DISMISS [10] 
STEPHEN J. MURPHY, III, United States District Judge 
*1 
Plaintiffs sued Defendant Bank of America for 
several claims related to the way Defendant administered 
unemployment benefits in Michigan. ECF 8. Defendant 
moved to dismiss the complaint for failure to state a claim. 
ECF 10. The parties briefed the motion. ECF 14; 15.1 For the 
following reasons, the Court will grant the motion to dismiss. 
Based on the parties' briefing, the Court will resolve the 
motion on the briefs without a hearing. See Fed. R. Civ. 
P. 78(b); E.D. Mich. L.R. 7.l(f)(2). 
BACKGROUND 
Michigan's unemployment insurance agency exclusively 
worked with Defendant to administer unemployment 
insurance during the COVID-19 pandemic. ECF 8, PglD 
82-83. Defendant issued unemployment insurance through 
prepaid debit cards linked to individual depository accounts. 
Id. at 77. The cardholder agreement governed the parties' 
relationship. Id. at 79; see ECF 10-2 (cardholder agreement). 
For any unauthorized transactions, Defendant's liability 
was limited to "reimbursing [Plaintiffs] the amount of 
[their] loss up to the face amount of any unauthorized 
card transaction." ECF 10-2, PgID 168. "A transaction is 
considered 'unauthorized' if it is initiated by someone other 
than you (the cardholder) without your actual or apparent 
authority, and you receive no benefit from the transaction." 
Id. "A transaction is not considered 'unauthorized' if ... 
[Defendant] conclude[s] that the facts and circumstances do 
not reasonably support a claim of unauthorized use." Id. 
( emphasis added). 
To report an unauthorized transaction, a consumer had to tell 
Defendant the "name and Card Account number," "[w]hy 
[he] believe[s] there is an error, and the dollar amount 
involved," and "[a]pproximately when the error took place." 
Id. at 167. Any oral notice from the consumer must also be 
sent "in writing within [ten] business days." Id. Once notice 
is provided, Defendant must "determine whether an error 
occurred within [ten] business days." Id. 
For account freezes, the cardholder agreement allowed 
Defendant to freeze an account "pending an investigation" if 
it "suspect[ s] irregular, unauthorized, or unlawful activities ... 
involved with [the] Account." Id. at 168. 
Plaintiffs Raymond Hardin, Shantia James, and Ashley 
Simpson all received the prepaid debit cards from Defendant 
as their unemployment insurance payments. ECF 8, PgID 81-
82. 
Hardin alleged that he experienced a fraudulent transaction on 
his account in December 2020. Id. at 98. When he discovered 
the fraud, he "reported the fraud to [Defendant] via phone." 
Id. at 99. Defendant asked him to verify his identity before it 
could help him. Id. Defendant meanwhile froze his account 
and did not credit his account for the allegedly fraudulent 
transaction. Id. 
James alleged that she experienced fraud between July and 
October 2020. Id. She reported the fraud to Defendant, 
but Defendant told her that she would need to contact the 
unemployment agency because an unauthorized person had 
"gained access to the card and was using the unemployment 
benefits." Id. During that time, Defendant froze her account 
for nearly ten months. Id. at 100. 
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Exhibit A 
-2-
Hardin v. Bank of America, N.A., Slip Copy (2022) 
*2 Simpson alleged that her account was frozen based 
on suspected fraud in December 2020. Id. But no fraud 
occurred on her account. Id. She reported the account freeze 
to Defendant, but Defendant told her that she would have to 
contact someone else to unfreeze her account. Id. 
In December 2021, Plaintiffs sued Defendant for violating 
the Electronic Fund Transfers Act ("EFTA"). Id. at 108-12; 
see also ECF 1-2 (original complaint). Plaintiffs also raised 
breach of contract, ECF 8, PglD 117-18, breach of implied 
contract, id. at 119-20, and breach of implied covenant 
of good faith and fair dealing claims, id. at 120-22. Last, 
Plaintiffs asserted negligence, id. at 112-15, and negligent 
hiring claims, id. at 115-1 7. 
LEGAL STANDARD 
The Court may grant a motion to dismiss under Federal Rule 
of Civil Procedure 12(b)(6) if the complaint fails to allege 
facts "sufficient 'to raise a right to relief above the speculative 
level,' and to 'state a claim to relief that is plausible on its 
face.' " Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 
(6th Cir. 2009) (quoting Bell At/. Corp. v. Twombly, 550 U.S. 
544, 555, 570 (2007)). The Court views the complaint in the 
light most favorable to the plaintiff, presumes the truth of all 
well-pleaded factual assertions, and draws every reasonable 
inference in the nonmoving party's favor. Bassett, 528 F.3d at 
430. 
But the Court will not presume the truth of legal conclusions 
in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 
If "a cause of action fails as a matter of law, regardless of 
whether the plaintiff's factual allegations are true or not," then 
the Court must dismiss. Winnett v. Caterpillar, Inc., 553 F.3d 
1000, 1005 (6th Cir. 2009). 
In a Rule 12(b)(6) motion, courts can only "consider the 
[ c ]omplaint and any exhibits attached thereto ... [ and] items 
appearing in the record of the case and exhibits attached to 
defendant's motion to dismiss so long as they are referred 
to in the [c]omplaint and are central to the claims contained 
therein." Bassett, 528 F.3d at 430 (citation omitted); see also 
Decoration Design Sols., Inc. v. Amcor Rigid Plastics USA, 
Inc., 553 F. Supp. 3d 424, 427 (E.D. Mich. 2021) (Murphy, 
J.). And courts may grant a Rule 12(b)(6) motion based on an 
affirmative defense when the limitations period has expired 
so long as there are "no sets of facts that would entitle [the 
plaintiff] to relief." Duncan v. Leeds, 742 F.2d 989, 991 (6th 
Cir. 1984) (emphasis omitted) (citation omitted). 
DISCUSSION 
The Court will first dismiss the EFTA claim. After, the Court 
will dismiss the contract-related claims and the negligence 
claims. 
I. EFTA Claim 
To start, James's EFTA claim is time-barred. Plaintiffs must 
bring an EFTA claim "within one year from the date of 
the occurrence of the violation." 15 U.S.C. § 1693m(g). In 
other words, the limitations period started at "the moment 
of transfer." Wike v. Vertrue, Inc., 566 F.3d 590, 593 (6th 
Cir. 2009). James alleged the fraudulent transactions occurred 
between July 2020 and October 2020. ECF 8, PglD 99. 
Plaintiffs did not file the complaint until December 2021 . ECF 
1-2. James's EFTA claim is therefore untimely. 
James did not respond to the limitations period argument 
in the response brief. See ECF 14, PgID 182-86. When a 
plaintiff does not respond to a defendant's argument, the 
plaintiff waives any opposition to the argument. Humphrey v. 
US. Atty Gen. s Office, 279 F. App'x 328, 331 ( 6th Cir. 2008) 
(stating that when a plaintiff fails to respond to a defendant's 
argument, any opposition is waived) ( citations omitted). The 
Court will therefore dismiss James' EFTA claim. 
*3 The remaining EFTA claims from Hardin and Simpson 
stem from Defendant's errors related to unauthorized 
transactions. ECF 8, PgID 108-12; see also id. 
at 
108 ("Plaintiffs and Class Members provided notice to 
[Defendant] within 60 days after [Defendant] sent a period 
statement reflecting an unauthorized transaction (which is 
an 'error' under Regulation E) consistent with 15 U.S.C. § 
1693f and 12 C.F.R. § 1005.11."). Yet Plaintiffs appear to 
respond that the EFTA claims also involve Defendant's errors 
over their "request for additional information or clarification 
concerning an electronic fund transfer or any documentation 
required by [the EFTA]." 15 U.S.C. § 1693f(f)(6); see also 
ECF 14, PgID 184-86. Because those allegations were not in 
the amended complaint, the Court cannot consider them. See 
Bassett, 528 F.3d at 430. 
Even if the Court could consider those allegations as pleaded 
in the amended complaint, requests for additional information 
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Exhibit A 
-3-
Hardin v. Bank of America, N.A., Slip Copy (2022) 
or clarification apply only for requests "concerning an 
electronic fund transfer." 12 C.F.R. § 1005.ll(a)(l)(vii). The 
defined requests do not include "routine inquir[ies] about the 
consumer's account balance," among other "recordkeeping" 
requests. 12 C.F.R. § 1005.ll(a)(2). Neither Simpson nor 
Hardin requested information or clarification about an 
electronic funds transfer. ECF 8, PgID 98-101. Simpson did 
not even allege that her electronic funds were transferred. 
Id at 100-01. In the end, the Court will assess the motion 
to dismiss as to only the claims from Simpson and Hardin 
that stem from Defendant's errors related to unauthorized 
transactions. 
For Simpson, the Court will dismiss her EFTA claim because 
she never experienced fraud. ECF 8, PgID 100 ("[F]raud 
never occurred on her account.") Instead, Simpson alleged 
only that her account "freeze was unwarranted." Id And 
she alleged that because of the freeze, Defendant violated 
15 U.S.C. § 1693f and 12 C.F.R. § 1005.11. Id at 108-09. 
But the EFTA does not regulate account freezes; it regulates 
electronic funds transfers. Wike, 566 F.3d at 592 ("The statute 
covers a wide range of electronic money transfers . .. and 
subjects them to a litany of procedural requirements designed 
to protect consumers from transactions made in error or 
without their consent.") ( citation omitted). And the regulation 
does not define account freezes as an "error" covered under 
the EFTA. See 12 C.F.R. § 1005.ll(a)(l). 
In any event, Simpson failed to respond to Defendant's 
argument that the EFTA does not regulate account freezes. 
See ECF 14, PglD 183-86; see also ECF 10, PgID 145-46 
(Defendant's motion to dismiss). As a result, her argument is 
not only waived but fails on the merits as well. The Court will 
thus dismiss Simpson's EFTA claim. Humphrey, 279 F. App'x 
at 331. 
Hardin's EFTA claim fails because he failed to plausibly 
plead that he complied with the notification requirements. 
The EFTA requires Defendant to investigate alleged errors 
when a consumer notifies Defendant that an alleged error 
occurred. 15 U.S.C. § 1693f(a)(3). Consumers have specific 
notice requirements that they must comply with before 
Defendant needs to investigate. § 1693f(a); 12 C.F.R. § 
1005 .11 (b ). First, the consumer must notify Defendant in 
sixty days about the alleged error. 12 C.F.R. § 1005.ll(b) 
(l)(i). Second, the notification must "[e]nable[] [Defendant] 
to identify the consumer's name and account number." 12 
C.F.R. § 1005.ll(b)(l)(ii). And third, the notification must 
"[i]ndicate[ ] why the consumer believes an error exists and 
includes to the extent possible the type, date, and amount of 
the error." § 1005.ll(b)(l)(iii). 
Hardin flouted the notice requirements. For one, he simply 
"reported the fraud to [Defendant]." ECF 8, PgID 99. In tum, 
Defendant asked him to verify his identity before they could 
investigate. Id But Hardin did not comply. See id Put simply, 
a consumer who fails to provide identifying information 
flouts 12 C.F.R. § 1005.ll(b)(l)(ii). For another, the amended 
complaint did not otherwise suggest that Hardin "informed 
Defendant of the type of error that triggers Defendant's duties 
under the EFTA or that [ ]he notified Defendant with the 
specificity that triggers those duties." Ghalchi v. US. Bank, 
N.A., No. CV 14-6619, 2015 WL 12655402, at *8 (C.D. Cal. 
Jan. 8, 2015); see ECF 8, PgID 98-99. 
*4 In response, Hardin pointed to no specific allegation 
that suggested he had provided proper notice. See ECF 14, 
PgID 182-83. Rather, Hardin relied on others' allegations to 
suggest he satisfied the notice requirements. Id. But sufficient 
allegations for one plaintiff do not plausibly suggest that 
Hardin's EFTA claims survive dismissal. In sum, because 
Plaintiffs' claims each fail for their own reasons, the Court 
will dismiss the EFTA claims against Defendant. 
II. Contract-Related Claims 
North Carolina Jaw governs the contract. ECF 10-2, PgID 
167. Plaintiffs, however, cited no North Carolina contract law 
in the response brief. ECF 14, PglD 186-90 (citing Sixth 
Circuit and Michigan Appellate Court cases). Plaintiffs also 
provided no reasoning for why the Court should not apply 
North Carolina law given the choice-of-law provision in the 
contract. See id Still, the Court will apply North Carolina law 
and dismiss each contract-related claim in tum. 
A. Breach of Contract 
A contract is interpreted "as a whole" and "[ a ]11 parts of the 
contract will be given effect if possible." S. Seeding Serv., Inc. 
v. WC. Eng., Inc., 719 S.E. 2d. 211,215 (N.C. Ct. App. 2011) 
( quotation omitted). "Contracts are interpreted according to 
the intent of the parties. The intent of the parties is determined 
by examining the plain language of the contract." Liptrap v. 
Coyne, 675 S.E. 2d. 693,696 (N.C. Ct. App. 2009) (quotation 
omitted). "[I]f the meaning of the [contract] is clear and 
only one reasonable interpretation exists, the courts must 
enforce the contract as written." Gaston Cnty. Dyeing Mach. 
Co. v. Northfield Ins. Co., 524 S.E.2d 558, 563 (N.C. 2000) 
( quotation omitted). "The elements of a claim for breach of 
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Exhibit A 
-4-
Hardin v. Bank of America, N.A., Slip Copy (2022) 
contract are (1) existence ofa valid contract and (2) breach of 
the terms of that contract." Poor v. Hill, 530 S.E.2d 838, 843 
(N.C. Ct. App. 2000) (citing Jackson v. Cal. Hardwood Co., 
463 S.E.2d 571, 572 (N.C. 1995)). 
Plaintiffs alleged three groups of breaches. The frrst 
group stemmed from how Defendant handled unauthorized 
fraudulent transactions. ECF 8, PgID 118 ,r 118(a}-(d). 
Defendant, for example, failed to "timely and reasonably 
investigate and resolve their fraud claims" and "reimburse 
them for [the] unauthorized transactions." Id. The second 
group of breach allegations asserted that Defendant 
improperly froze their accounts. Id. ,r 118( e }-(f). And the third 
group alleged that Defendant failed to "make funds available 
to" Plaintiffs according to the contract. Id. ,r ll 8(g}-(h). The 
Court will dismiss each alleged breach. 
1. Unauthorized transactions 
Defendant's liability for unauthorized transactions is limited 
to "reimbursing [Plaintiffs] the amount of [their] loss up to 
the face amount of any unauthorized card transaction." ECF 
10-2, PgID 167. "A transaction is considered 'unauthorized' 
if it is initiated by someone other than you (the cardholder) 
without your actual or apparent authority, and you receive no 
benefit from the transaction." Id. at 168. "A transaction is not 
considered 'unauthorized' if ... [Defendant] conclude[s] that 
the facts and circumstances do not reasonably support a claim 
of unauthorized use." Id. (emphasis added). 
Simpson's claim for breach of contract fails because she 
alleged that her account did not have an unauthorized 
transaction. ECF 8, PgID 100 ("[F]raud never occurred."). 
Without an unauthorized transaction, Defendant could not 
breach its duties to reimburse her for an unauthorized 
transaction. 
*5 And the claims from Hardin and James fail for two 
reasons. One, Hardin and James never alleged that they 
complied with the contract's requirements to provide notice 
that would trigger Defendant's duties to investigate and 
reimburse a potential unauthorized transaction. Id. at 98-
100. To report an account error, such as an unauthorized 
transaction, a consumer would have to tell Defendant his 
"name and Card Account number," "[w]hy [he] believe[s] 
there is an error and the dollar amount involved," and 
"[ a ]pproximately when the error took place." ECF 10-2, PgID 
167. And a notice sent "in writing within [ten] business days" 
must accompany any oral notice from the consumer. Id. Once 
notice is provided, Defendant must "determine whether an 
error occurred within [ten] business days." Id. 
Hardin neither followed up in writing nor provided the 
necessary information to Defendant so that it could verify his 
identity. See ECF 8, PgID 99. And James reported the alleged 
unauthorized transaction "via phone" but she never detailed 
whether she followed up in writing. Id. at 99-100. In either 
case, Hardin and James failed to plausibly allege that they 
complied with the contract and triggered Defendant's duty to 
investigate. 
Two, even if Hardin and James did provide proper notice, 
they never alleged that Defendant unreasonably "conclude[ d] 
that the facts and circumstances" did not "support a claim of 
unauthorized use." ECF 10-2, PglD 168; see ECF 8, PglD 
99-100. Put differently, no allegations show that Defendant, 
after an investigation, violated its duty to reimburse. In either 
case, the breach of contract claims based on unauthorized 
transactions fail for Hardin and James. The Court will 
thus dismiss the breach of contract claims related to the 
unauthorized transactions. 
2. Account freezing 
The contract allows Defendant to freeze an account "pending 
an investigation" if it "suspect[s] irregular, unauthorized, or 
unlawful activities ... involved with [the] Account." ECF 
10-2, PgID 168. Plaintiffs suggested that Defendant breached 
this provision because it lacked "a reasonable basis for 
suspecting irregular, unauthorized, or unlawful activities in 
the Account[s]." ECF 8, PgID 118 ,r 118(e). But the contract 
included no "reasonable basis" requirement to freeze the 
account. See ECF 10-2, PglD 168. All Defendant needed 
was a suspicion. Id. Even Simpson alleged that Defendant 
froze her account because it "suspected fraud." ECF 8, PgID 
100. And although James and Hardin did not explain why 
Defendant froze their account, they alleged that their accounts 
had suffered from actual fraud. Id. at 98-100. In short, 
the Court can only plausibly infer that Defendant froze the 
accounts because it had suspected fraud, and that suspicion 
gave it the right to freeze the accounts. ECF 10-2, PgID 168. 
Plaintiffs also alleged that Defendant froze their accounts 
for too long-"beyond the length of time necessary for a 
reasonable investigation." ECF 8, PgID 118 ,r l 18(e). But the 
contract contains no such limit for how long Defendant can 
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Exhibit A 
-5-
Hardin v. Bank of America, N.A., Slip Copy (2022) 
freeze accounts. See ECF 10-2, PgID 167-68. The contract 
limits Defendant to freezing the account only "pending an 
investigation." Id. at 168. No Plaintiff alleged that their 
accounts were frozen beyond when Defendant completed any 
investigation. See ECF 8, PglD 98-101. At bottom, Plaintiffs 
failed to allege that Defendant breached the contract by 
freezing the accounts. The Court will therefore dismiss the 
breach of contract claims related to account freezing. 
3. Makingfunds available 
The contract does not require Defendant to make funds 
available to Plaintiffs when their accounts are frozen. See ECF 
10-2, PgID 167-68. Still, Plaintiffs pointed to the contract's 
second section. ECF 14, PgID 187 ("[Defendant] further 
violated Section 2 .... ") (citation omitted). Yet section two 
expressly authorizes account freezes. ECF 10-2, PgID 168. In 
brief, without showing that Defendant breached a provision 
in the contract, the Court will dismiss the breach of contract 
claims that stem from Defendant "failing to make funds 
available to [Plaintiffs]." ECF 8, PglD 118 ~ 118(g}--(h). 
B. Breach of Implied Covenant of Good Faith and Fair 
Dealing 
*6 "In every contract there is an implied covenant of good 
faith and fair dealing." Williams v. Craft Dev., LLC, 682 
S.E.2d 719, 723 (N.C. Ct. App. 2009) (quotation and citation 
omitted). But the covenant cannot contradict the express 
terms ofa contract. Rich Food Servs., Inc. v. Rich Plan Corp., 
98 F. App'x 206, 211 (4th Cir. 2004) (citations omitted). To 
that end, when a breach of contract claim is "part and parcel" 
of a breach of good faith claim, the two claims are the same. 
Lord of Sha/ford v. Shelley's Jewelry, Inc., 127 F. Supp. 2d 
779, 787 (W.D.N.C. 2000) (citations omitted). Because the 
breach of implied covenant claim centers on how Defendant 
investigated unauthorized transactions and froze accounts, 
those claims are the same as the breach of contract claims. 
Compare ECF 8, PgID 117-18 andECF 10-2, PgID 167, with 
ECF 8, PglD 120-22. As a result, the Court will dismiss the 
implied covenant claim as duplicative. 
C. Breach of Implied Contract 
The implied contract claim fails because the parties had 
an express contract governing their relationship. "There can 
be no implied contract where there is an express contract 
between the parties in reference to the same subject matter." 
Charlotte Motor Speedway, Inc. v. Tindall Corp., 672 S.E.2d 
691, 692 (N.C. Ct. App. 2009) (quoting Greene v. Charlotte 
Chem. Labs., Inc., 120 S.E.2d 82, 89 (N.C. 1961)). Here, 
the subject matter alleged by Plaintiffs to sustain the implied 
contract (securing accounts against unauthorized transactions 
and investigate any unauthorized transaction) is governed 
by an express contract. Compare ECF 8, PgID 117-18 and 
ECF 10-2, PgID 167, with ECF 8, PgID 119-20. The claim 
therefore fails, and the Court will dismiss it. 
III. Negligence Claims 
The negligent hiring and supervision claims fail because 
Plaintiff failed to respond to Defendant's motion to dismiss 
those claims. See ECF 14, PgID 190-92; ECF 10, PgID 162-
63 (Defendant's motion to dismiss). Thus, without a response, 
the claims are waived. Humphrey, 279 F. App'x at 331. 
The negligence claims fail for similar reasons. To establish 
a prima facie case of negligence, a plaintiff must prove 
four elements: duty, breach of that duty, causation, and 
damages. Fultz v. Union-Com. Assocs., 470 Mich. 460, 463 
(2004). Defendant moved to dismiss the negligence claims 
because even if it were to breach a duty owed to Plaintiffs, 
it did not cause Plaintiffs' injuries. ECF 10, PgID 160-61. 
Plaintiffs failed to respond to the causation argument. ECF 14, 
PglD 190-92. Without a response, those claims are waived. 
Humphrey, 279 F. App'x at 331. 
Last, negligence per se cannot save Plaintiffs' negligence 
claims from dismissal. "[N]egligence per se is not an 
independent cause of action, but rather a burden-shifting 
mechanism within the theory of negligence." Abnet v. Coca-
Cola Co., 786 F. Supp. 2d 1341, 1345 (W.D. Mich. 2011) 
(collecting Michigan cases). In all, the Court will dismiss the 
negligence claims. 
CONCLUSION 
The Court will grant the motion to dismiss. Although 
Plaintiffs asked the Court to grant leave to amend, ECF 
14, PgID 192-93, the Court will deny the request for three 
reasons. 
First, Plaintiffs already amended the complaint. ECF 8. 
Because Plaintiffs should have amended the complaint then 
to correct pleading deficiencies, allowing another amendment 
now will not help cure any pleading deficiencies. 
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Exhibit A 
-6-
Hardin v. Bank of America, N.A., Slip Copy (2022) 
Second, Plaintiffs cited only Michigan case law to support 
granting leave to amend the complaint. ECF 14, PgID 192-
93 ( citation omitted). Simply put, Michigan procedural law is 
irrelevant to whether the Court grants leave to amend under 
the Federal Rules of Civil Procedure. See Gasperini v. Ctr. for 
Humans., Inc., 518 U.S. 415, 427 (1996) (quoting Erie R.R. 
Co. v. Tompkins, 304 U.S. 64, 78 (1938)). 
*7 Third, based on the information before the Court, an 
amendment is futile. Local Rule 15.1 requires that "[a] party 
who moves to amend a pleading shall attach the proposed 
amended pleading to the motion." Plaintiffs failed to attach 
a proposed amendment to their response. See generally ECF 
14. Although failure to comply with Local Rule 15.1 "is not 
a ground for denial of the motion," granting leave to amend 
will be no more than a fool's errand. After all, Plaintiffs have 
not even suggested that they can assert any allegations that 
will remedy the significant pleading shortfalls. See Crosby 
v. Twitter, Inc., 921 F.3d 617, 628 (6th Cir. 2019) (denying 
leave to amend when the plaintiffs "included only a cursory 
request at the end of their opposition to [ d]efendant's motion 
to dismiss"); Ky. Mist Moonshine, Inc., v. Univ. of Ky., 192 F. 
Supp. 3d 772, 791 (E.D. Ky. 2016) (denying leave to amend 
because the amendment would not resolve the sovereign 
immunity question). 
End of Document 
Besides, "[w]ithout viewing the proposed amendment, it [is] 
impossible for the [ ] [C]ourt to determine whether leave 
to amend should [be] granted." Spadafore v. Gardner, 330 
F.3d 849, 853 (6th Cir. 2003); see Robbins v. New Cingular 
Wireless PCS, LLC, 854 F.3d 315, 322 (6th Cir. 2017) 
(collecting cases) (denying leave to amend when "plaintiffs 
have barely attempted to follow the proper amendment 
procedures"); Bega/av. PNC Bank, Ohio, Nat. Ass 'n, 214 F.3d 
776, 784 (6th Cir. 2000) ("What plaintiffs may have stated, 
almost as an aside ... in opposition to the defendant's motion to 
dismiss is ... not a motion to amend"). The Court will therefore 
deny leave to amend. 
ORDER 
WHEREFORE, it is hereby ORDERED that the motion to 
dismiss [10] is GRANTED. 
This is a final order that closes the case. 
SO ORDERED. 
All Citations 
Slip Copy, 2022 WL 3568568 
© 2022 Thomson Reuters. No claim to original U.S. 
Government Works. 
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