The opinion of the court was delivered by: Hochberg, District Judge:
Plaintiff, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 45, AFL-CIO, alleges that its finances and operations have been damaged by a series of fraudulent withdrawals from its operating bank account. The withdrawals were allegedly made by plaintiff's former treasurer, James Kearney, Jr, from a Bank of America account maintained by plaintiff. Plaintiff alleges that the withdrawals were made in violation of a deposit agreement between plaintiff and Bank of America, which plaintiff contends required two authorized officers of plaintiff to sign all withdrawal requests. Plaintiff's complaint contains eight counts and names four defendants. However, Bank of America is named as a defendant in only two counts of the complaint, count seven (negligence) and count eight (breach of contract).
Bank of America seeks the dismissal of plaintiff's negligence claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) ("[S]tating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.") (internal quotations omitted).
When considering a motion to dismiss under Iqbal, the Court must conduct a two-part analysis. "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (internal citations omitted). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Iqbal, 129 S. Ct. at 1949(internal quotations and alterations omitted).
In order to maintain a claim for common law negligence, a plaintiff must allege the following elements: "(1) [a] duty of care, (2) [a] breach of [that] duty, (3) proximate cause, and (4) actual damages[.] Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 400 (N.J. 2009) (quotations omitted) (alterations in original). Plaintiff alleges that it entered into a deposit agreement with Bank of America, which required that withdrawals be authorized by two signatures from officers of plaintiff. Plaintiff alleges that the dual-signature requirement, along with the other terms of its relationship with Bank of America, created a special relationship of trust between plaintiff and Bank of America. Plaintiff contends that as a result of this relationship, Bank of America had a duty to plaintiff to exercise ordinary care with respect to its oversight of plaintiff's accounts. Plaintiff alleges that Bank of America breached this duty of care by failing to enforce the dual signature requirement in connection with a series of fraudulent withdrawals made by plaintiff's former treasurer.*fn1
Bank of America contends that no common law duty of care exists in this case. In support of this contention Bank of America advances three arguments: (1) that its only duties to plaintiff were contractual, (2) that New Jersey's economic loss rule prohibits recovery under a negligence theory for plaintiff's damages, and (3) that the Uniform Commercial Code, as enacted by New Jersey, displaces the common law duty of care alleged by plaintiff. Plaintiff responds that it has adequately alleged the existence of a duty of care arising outside of the contractual relationship between plaintiff and Bank of America. Plaintiff argues that the Court should consider the relationship of the parties, the nature of the risk attendant to the parties' relationship, and Bank of America's ability to exercise care. See Brunson, 199 N.J. at 403 (listing factors used to determine whether a duty of care is owed and declining to recognize a cause of action against a bank for negligent investigation of an identity theft case where the investigation resulted in the arrest of the identity theft victim).
Plaintiff's complaint fails to allege the existence of a non-contractual relationship between plaintiff and Bank of America. The complaint itself defines both the relationship between plaintiff and Bank of America, and Bank of America's purported duty to plaintiff, solely by reference to Bank of America's alleged contractual obligations to plaintiff. See Complaint ¶¶ 76-81 (alleging that a "special relationship of trust" was formed when plaintiff became a customer of Bank of America by entering into a deposit agreement, the terms and conditions of which governed the relationship between plaintiff and Bank of America); Id. ¶¶ 82-90 (contending that the duty allegedly breached by Bank of America was a duty to comply with a contractual dual-signature requirement contained in the deposit agreement).
Accordingly, notwithstanding the language of the complaint "sounding in tort, the complaint essentially arises in contract rather than tort and is governed by the contract" between plaintiff and Bank of America. See Wasserstein v. Kovatch, 261 N.J. Super. 277, 286 (N.J. 1993) (concluding that a dispute including a purported tort claim clearly arose out of an underlying contract and its breach and was therefore subject to arbitration); New Mea Constr. Corp. v. Harper, 203 N.J. Super. 486, 494-497 (N.J. Super. Ct. App. Div. 1985) (concluding that a claim for negligent supervision of a construction project sounded in contract because the duties allegedly violated were specifically defined by contract).
Even if plaintiff had adequately alleged the existence of a common law duty owed by Bank of America, New Jersey's economic loss rule precludes the recovery of purely economic losses by plaintiff under its negligence theory. "The economic loss rule defines the boundary between the overlapping theories of tort law and contract law by barring the recovery of purely economic loss in tort, particularly in strict liability and negligence cases." Arcand v. Brother Int'l Corp., 673 F. Supp. 2d 282, 307-8 (D.N.J. 2009) (quotations omitted). Under the economic loss rule, a plaintiff generally ...