Felknor v. Bank of America, N.A.

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RYAN T AYLOR F ELKNOR ,
Plaintiff,
v. 	No. 4:25-cv-01291-P-BP
BANK OF A MERICA NA,
Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
This is a suit for violation of the Electronic Fund Transfer Act (“EFTA”), the
Americans with Disabilities Act (“ADA”), the Texas Deceptive Trade Practices—
Consumer Protection Act (“DTPA”), negligence, and breach of informal fiduciary
duty, that Plaintiff Ryan Taylor Felknor brings against Bank of America NA (“BOA”).
ECF No. 1. On January 21, 2026, United States District Judge Mark T. Pittman
referred the case to the undersigned for pre-trial management. ECF No. 21.
Before the Court are the Motion to Dismiss that BOA filed on January 16, 2026
(ECF No. 18), Response that Felknor filed on February 6, 2026 (ECF No. 23), and
Reply that BOA filed on February 18, 2026 (ECF No. 24). After reviewing the
pleadings and applicable legal authorities, the undersigned RECOMMENDS that
Judge Pittman GRANT the Motion to Dismiss in part (ECF No. 11) and DISMISS
Felknor’s claims without leave to amend his claims as set forth below.
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I. 	BACKGROUND
On October 5, 2021, Felknor and his accountant opened two accounts with
BOA at a branch in Madison, Tennessee. ECF No. 1 at 2. Felknor informed BOA that
he received Social Security disability benefits, has Autism Spectrum Disorder and
manic depression, and relied on the help of his accountant to assist him in managing
his finances. Id. In October 2024, Felknor claims his account was debited $515,000.00
without his authorization. Id. He claims that BOA processed these transfers “without
employing two-factor authentication, out-of-band confirmation, or other commercially
reasonable safeguards.” Id. at 3. Felknor claims he previously reported a similar
$1,500.00 unauthorized transaction, but BOA denied his fraud claims as to both
transactions. Id.
Felknor alleges that a BOA employee called his accountant and attempted to
coerce his accountant to sign a document containing false statements relating to the
transfers. Id. at 4. He also alleges that BOA did not accommodate his disability and
did not take meaningful steps to recover the improperly transferred funds. Id. at 5-6.
He seeks actual damages of $516,500.00, statutory and treble damages, injunctive
and declaratory relief under the ADA, attorney fees and costs, and pre and post
judgment interest. Id. at 13.
II. 	LEGAL STANDARDS
A. 	Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of complaints that
fail to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To state
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a viable claim for relief, a complaint must include sufficient factual allegations “to
raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). In considering a Rule 12(b)(6) motion, courts must “take all well-
pleaded facts as true, viewing them in the light most favorable to the plaintiff ... and
ask whether the pleadings contain ‘enough facts to state a claim to relief that is
plausible on its face.’” Yumilicious Franchise, LLC v. Barrie, 819 F.3d 170, 174 (5th
Cir. 2016) (citing Twombly, 550 U.S. at 547).
“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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In ruling on a motion
to dismiss, a court may consider documents outside the complaint when they are: (1)
attached to the motion to dismiss; (2) referenced in the complaint; and (3) central to
the plaintiff’s claims. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007).
B. 	The EFTA
The [EFTA] provides that the customer must, orally or in writing,
notify the institution of any errors relating to electronic fund transfers
within 60 days of the customer's receipt of the bank statement or other
document detailing the alleged erroneous electronic fund transfer. 15
U.S.C. 	§ 	1693f(a). 	Once 	the 	institution 	is 	properly 	notified, 	the
institution is required to “investigate the alleged error, determine
whether an error has occurred, and report or mail the results of such
investigation and determination to the consumer within ten business
days.” Id. . . . Where the financial institution determines that an error
did occur, the EFTA requires that it credit the consumer's account, with
interest, within “one business day after such determination.” 15 U.S.C.
§ 1693f(b). Conversely, if after investigation the financial institution
determines that an error did not occur, “it shall deliver or mail to the
consumer an explanation of its findings within [three] business days
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after the 	conclusion of its 	investigation, and upon 	request of the
consumer promptly deliver or mail to the consumer reproductions of all
documents which the financial institution relied on to conclude that
such error did not occur.” 15 U.S.C. § 1693f(d).
Almon v. Conduent Bus. Services, LLC, No. SA-19-cv-01075-XR, 2022 WL 902992, at
*1–2 (W.D. Tex. Mar. 25, 2022)
C. 	Negligence
“Under Texas law, the elements of a negligence claim are (1) a legal duty on
the part of the defendant; (2) breach of that duty; and (3) damages proximately
resulting from that breach.” Sport Supply Group, Inc. v. Columbia Cas. Co., 335 F.3d
453, 466 (5th Cir. 2003).
D. 	Title III of the Americans with Disabilities Act (“ADA”)
Title III of the ADA states “[n]o individual shall be discriminated against on the basis
of disability in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any person who
owns, leases (or leases to), or operates a place of public accommodation.” Magee v. Coca-Cola
Refreshments USA, Inc., 833 F.3d 530, 532 (5th Cir. 2016); 42 U.S.C. § 12182(a). A private
entity may qualify as a public accommodation, providing the entity “affect[s] commerce.” 42
U.S.C. § 12181(7).
E. 	DTPA
The DTPA was enacted “to protect consumers against false, misleading, and
deceptive business practices, unconscionable actions, and breaches of warranty and
to provide efficient and economical procedures to secure such protection.” Tex. Bus.
& Com. Code § 17.44. “There are three elements to a DTPA claim: ‘(1) the plaintiff is
a consumer; (2) the defendant engaged in false, misleading, or deceptive acts; and (3)
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these acts constituted a producing cause of the consumer’s damages.’” In re Frazin,
732 F.3d 313, 323 (5th Cir. 2013) (citing Hugh Symons Grp., plc v. Motorola, Inc., 292
F.3d 466, 468 (5th Cir. 2002)).
F. 	Informal Fiduciary Duty
Ordinarily, a “bank relationship standing alone [does not] create a fiduciary
relationship.” Wells Fargo Bank, N.A. v. Citizens Bank of Tex., N.A., 181 S.W.3d 790,
801 (Tex. App.—Waco 2005, pet. denied) (citations omitted). However, such an
informal relationship may give rise to a fiduciary duty where one person trusts in and
relies on another, whether the relation is a moral, social, domestic, or purely personal
one. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 176 (Tex. 1997) (citations
omitted). Yet “not every relationship involving a high degree of trust and confidence
rises to the stature of a fiduciary relationship . . . [and courts should] not create such
a relationship lightly. Id. at 176-177.
G. 	Dismissal with or without leave to amend
It is a “well-established policy that the plaintiff be given every opportunity to
state a claim.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The
decision to allow amendment of the pleadings is within the sound discretion of the
Court. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). In determining
whether to allow an amendment of the pleadings, the Court considers: undue delay
in the proceedings, undue prejudice to the opposing parties, timeliness of the
amendment, and futility of the amendment. See Foman v. Davis, 371 U.S. 178, 182
(1962); Chitimacha Tribe of La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1163 (5th
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Cir. 1982). “At some point, a court must decide that a plaintiff has had fair
opportunity to make [his] case; if, after that time, a cause of action has not been
established, the court should finally dismiss the suit.” Jacquez v. Procunier, 801 F.2d
789, 792-93 (5th Cir. 1986); Schiller v. Physicians Resource Group Inc., 342 F.3d 563
(5th Cir. 2003).
III. 	ANALYSIS
A. 	The Court should deny the Motion as to the EFTA claim.
BOA first argues that the EFTA does not apply to the transactions at issue
because they were “wire transfers” between two financial institutions which the
EFTA 	“expressly 	exclude[s].” 	ECF 	No. 	19 	at 	10 	(citing 	Reg. 	E, 	12 	C.F.R.
§ 1005.3(c)(3)). BOA also argues that dismissal is appropriate because Felknor filed
his claim more than one year after the transfers occurred, and therefore the EFTA
statute of limitations bars his claim. Id. at 12.
The EFTA exclusion BOA cites applies to “transfer of funds through Fedwire
or through a similar wire transfer system . . . primarily for transfers between financial
institutions or [] businesses.” Reg. E, 12 C.F.R. § 1005.3(c)(3) (emphasis added).
Felknor alleges this exclusion does not apply because the money was transferred from
his 	personal 	bank 	account 	with 	his 	financial 	institution, 	to 	another financial
institution. ECF No. 23 at 3. He also argues that the EFTA applies to the transfers
because 	the 	$515,000.00 	transfer 	was 	initiated 	through 	a 	Voice-over-Internet
Protocol (“VoIP”) rather than a traditional wire transfer procedure and the $1,500.00
transfer was through Apple Pay, which seemingly falls within the “telephonic
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instrument” category of the EFTA’s definition of “electronic fund transfer.” Id. (citing
15 U.S.C. § 1693a(7)).
Although it is possible that these transfers fall within the EFTA exception, the
Court takes all well-pleaded facts as true and views them in the light most favorable
to Felknor. Such well-pleaded facts include that the transfers were initiated via VoIP
and Apple Pay, which distinguish them from a wire transfer that the EFTA exception
covers.
Additionally, the statute of limitations does not bar Felknor’s claim. The one-
year deadline to file Felknor’s claim fell on Saturday, October 18, 2025, and he
accordingly filed his claim the next business day, Monday, October 20, 2025, in
compliance with Federal Rule of Civil Procedure 6(a)(1)(C). See ECF No. 1. The Court
finds Felknor has pleaded sufficient facts to state a claim to relief that is plausible on
its face, and therefore the Court should deny Motion as to the EFTA claim. Twombly,
550 U.S. at 547.
B. 	The Court should dismiss the negligence claim.
BOA contends that Felknor’s negligence claim should be dismissed
because the Uniform Commercial Code (the “UCC”) preempts the claim, it
owed Felknor no duty, and the economic loss rule bars the claim. ECF No. 19
at 13-17. BOA is correct on two of its arguments.
1. 	Preemption
“Where a legal dispute arises from a funds transfer, the parties should
look first to Article 4A of the UCC for guidance in bringing and resolving their
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claims.” Consorcio Indus. de Construccion Titanes, S.A. de C.V. v. Wells Fargo
Bank, N.A., No. 3:10-cv-2111-K, 2012 WL 13019678, at *2 (N.D. Tex. July 12,
2012).
However, “Article 4A does not automatically eliminate common law
claims.” JESCO Constr. Corp. v. Wells Fargo Bank, N.A., No. 1:20CV147-HSO-
JCG, 2021 WL 9629459, at *4 (S.D. Miss. Mar. 11, 2021). “Thus, a plaintiff is
only restrained from bringing non-Article 4A claims when those claims ‘create
rights, duties and liabilities inconsistent with those stated in [the] Article.’”
Consorcio, 2012 WL 13019678, at *2 (citing Regions Bank v. Provident Bank,
Inc., 345 F.3d 1267, 1275 (11th Cir. 2003)) (emphasis in original). “Therefore .
. . the court must determine whether the substantive claims brought by
Plaintiff are covered by the provisions of Art. 4A, or if they fall outside the
confines of the U.C.C. and can be grounded in other statutory or common law.”
Id. “The Article 4A displacement analysis with respect to a negligence claim is
a fact-specific inquiry.” JESCO Constr. Corp., 2021 WL 9629459, at *6 (citing
Newsome v. Peoples Bancshares, 269 So. 3d 19, 34 (Miss. 2018)).
The facts here are like those in JESCO Constr. Corp., which also
involved an unauthorized funds transfer from bank accounts to third parties.
2021 WL 9629459, at *1. There, the court found that the “negligence . . . claims
[were] not based solely on the initial unauthorized transfers of funds from its
accounts, but also on the subsequent acts of Wells Fargo after the initial
transfers were completed.” JESCO Constr. Corp., 2021 WL 9629459, at *7.
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Like that case, here Felknor claims BOA was negligent both in allowing the
transfer to occur and in its actions to investigate and recover the funds
following the transfer. Therefore, the Court “cannot say at this early stage of
the proceedings that [Felknor’s] negligence . . . claim[] [is] displaced by Article
4A,” because like in JESCO Constr. Corp., the negligence claims are not based
solely on the initial unauthorized transfers. Id.
2. 	Duty owed
BOA argues that Felknor has not established that BOA owed him a
duty, and no recognized legal duty exists under Texas law. ECF No. 19 at 15
(citing Barge v. Wells Fargo Bank, N.A., No. 1:23-cv-00189, 2024 WL 2520324,
at *4- 5 (E.D. Tex. Mar. 28, 2024)). In Barge, the Court dismissed a negligence
claim because the bank did not owe plaintiffs an “actionable duty.” 2024 WL
2520324, at *3-4.
Felknor argues that a duty may exist when “a bank’s conduct exceeds
ordinary account processing and involves control or induces reliance.” ECF No.
23 at 5 (citing Kashanchi v. Tex. Commerce Med. Bank, N.A., 703 F.2d 936,
939-40 (5th Cir. 1983)). But Kashanchi involved the EFTA, not negligence
claims, never mentions the word “duty” or “reliance,” and does not include any
references to “control.” See Kashanchi, 703 F.2d at 937. With no other legal
authority cited, this argument is unavailing.
Felknor alternatively argues BOA owed him a duty due to a “special
relationship” that existed because of BOA’s acknowledgment of his accountant
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as a joint owner of his account and knew he served as Felkner’s financial
advisor. ECF No. 23 at 6. But Courts only have found this exception “in a few
limited circumstances.” Sullivan v. Bank of Am., N.A., No. 3:14-cv-3186-G,
2014 WL 6977093, at *3 (N.D. Tex. Dec. 10, 2014). These circumstances include
a transaction between an insured and insurer but not between a mortgagor
and mortgagee. Id. at 3. Felknor does not provide an adequate factual basis,
nor cite to any legal authority that he had a special relationship with BOA
because he had an accountant who served as his financial advisor due to what
he refers to as his “maladies.” This argument is also unavailing because
Felknor has not shown a “special relationship” exists under applicable legal
authorities.
Finally, Felknor argues that Texas law imposes a duty when “one
undertakes to render services necessary for the protection of another’s property
and fails to exercise reasonable care.” ECF No. 23 at 5 (citing Torrington Co.
v. Stutzman, 46 S.W.3d 829, 838 (Tex. 2000)). He contends that BOA assumed
a duty to act reasonably when it previously opened a fraud investigation, froze
accounts, and controlled access to funds. Id. However, the Court in Torrington
Co. based this principle on classical notions of tort law and made clear that the
undertaker of the services is subject to liability only when (a) his failure to
exercise such care increases the risk of such harm, or (b) the harm is suffered
because of the other’s reliance upon the undertaking. 46 S.W.3d 829, 838.
Felknor does not allege that BOA’s previous fraud investigation increased the
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risk that future harm would occur. He also does not claim that the harm he
suffered was due to his reliance on BOA’s previous fraud investigation. As a
result, Felknor’s third argument also is unavailing.
Accepting Felknor’s factual allegations as true and viewing them in the
light most favorable to him, Felknor does not raise a right to relief above the
speculative level. Twombly, 550 U.S. at 55. As a result, the Court should
dismiss his negligence claim because he has not shown that BOA owed him a
duty.
3. 	Economic loss rule
Even if Felknor had established a duty existed, the Court still should
dismiss his negligence claim because the economic loss rule applies. “In Texas,
the economic loss rule generally precludes recovery in tort for economic losses
resulting from a party’s failure to perform under a contract when the harm
consists only of the economic loss of a contractual expectancy.” A-1 Am. Fence,
Inc. v. Wells Fargo Bank, N.A., No. 1:20-cv-441, 2021 WL 7184973, at *5 (E.D.
Tex. May 5, 2021).
“The burden is on the plaintiff to establish evidence of an independent
injury.” Id. BOA raised the economic loss rule in its Motion, and Felknor did
not address the argument in his Response. Because he has not met his burden
and not provided any factual basis to establish evidence of an independent
injury, dismissal is also appropriate on this basis.
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C. 	The Court should deny the Motion as to the ADA claim.
BOA next argues that the Court should dismiss Felknor’s ADA claim because
Felknor does not sufficiently identify a “policy, practice, or procedure to modify.” ECF
No. 19 at 20 (citing Prim v. Stein, 6 F.4th 584, 595 (5th Cir. 2021)). Additionally, BOA
argues Felknor did not show “that a modification was requested and that the
requested 	modification 	is 	reasonable” to 	establish 	a 	violation 	of 	42 	U.S.C.
§ 12182(b)(2)(A)(ii). Id. (citing Prim, 6 F.4th at 595).
Felknor 	alleges 	that 	he 	informed 	BOA 	of 	his 	qualified 	disabilities 	and
requested that communication be routed through his legal counsel and be structured
in a simplified manner. ECF No. 15 at 9-10. He alleges that BOA did not honor these
requests, communicated directly with him, and communicated unreasonably and
coercively with him and his legal counsel. Id. at 10.
Accepting these factual allegations as true and resolving all disputes in favor
of Felknor, the Court finds that he has plausibly alleged an ADA claim. While Felknor
does not reference an exact policy BOA did not modify, he describes the requested
accommodation with sufficient specificity to show that he requested reasonable
modifications in BOA’s communication procedures, and BOA did not honor his
request. Accordingly, the Court should deny the Motion as to Felknor’s ADA claim.
D. 	The Court should dismiss the DTPA claim.
BOA argues the Court should dismiss Felknor’s DTPA claim because he does
not meet the applicable pleading standards, he is not a consumer under the law, and
the economic loss rule bars the claim.
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1. 	Pleading with particularity
A plaintiff must not “merely list portions of the DTPA that they claim
Defendants violated.” Martinez v. Capital One, No. cv H-22-2767, 2022 WL 17085938,
at *7 (S.D. Tex. Nov. 18, 2022). Instead, they must “plead [] DTPA claims with []
particularity.” Id.
In addition, when a plaintiff pleads a claim of fraud, the heightened pleading
standard of Federal Rule of Civil Procedure 9(b) “require[es] a plaintiff [] to specify
the statements contended to be fraudulent, identify the speaker, state when and
where the statements were made, and explain why the statements were fraudulent.”
Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 339 (5th Cir. 2008) (citing Herrmann
Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 564-65 (5th Cir. 2002)). And
“[c]laims alleging violations of the DTPA are subject to the requirements of Rule 9(b).”
Patel v. Holiday Hosp. Franchising, Inc., 172 F. Supp. 2d 821, 825 (N.D. Tex. 2001).
Here, Felknor alleges BOA represented that 1) high-value transfers would be
protected by fraud monitoring and multi-factor authentication; 2) unauthorized
transactions would be fairly investigated and recredited; and 3) BOA would safeguard
funds in accordance with its fraud policies. ECF No. 15 at 10. Felknor also alleges
facts showing how BOA did not implement these services when the transfers
occurred. Therefore, Felknor has sufficiently set out a factual basis as to “the who,
what, when, where, and how of the events at issue” may constitute fraud. Dorsey, 540
F.3d 333, 339 (5th Cir. 2008) (internal quotations and citations omitted).
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2. 	Consumer under the DTPA
A consumer is a person “who seeks or acquires by purchase or lease, any goods
or services.” Tex. Bus. & Com. Code §§ 17.45(4). And “the goods or services sought or
acquired must form the basis of the party’s complaint.” Ford v. City State Bank of
Palacios, 44 S.W.3d 121, 133 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.)
(citations omitted). BOA alleges bank customers are not consumers because they do
not purchase goods or services when depositing funds and holding an account with
the bank.
“The question of whether a party is a consumer [under the DTPA] is a question
of law.” Hunter v. Navy Fed. Credit Union, 749 F. Supp. 3d 743, 754–55 (N.D. Tex.
2024) (citing Gomez v. Wells Fargo Bank, 2010 WL 2900351, at *3 (N.D. Tex. July
21, 2010)). Authorities conflict on whether owning a bank account is sufficient to
establish consumer status under the DTPA.
Merely “deposit[ing] money into [an] account[]” is insufficient to show that a
person is a consumer of a bank’s services. See Venkatraman v. Bank of Am., N.A., No.
3:24-cv-2821-K-BW, 2025 WL 2347189, at *7 (N.D. Tex. July 25, 2025), rec. adopted,
No. 3:24-cv-2821-K-BW, 2025 WL 2345070 (N.D. Tex. Aug. 13, 2025). And “if the sole
objective of the transaction is for an intangible such as establishing a bank account,
thereby creating an account receivable, then consumer status is not reached.”
Canfield v. Bank One, Tex., N.A., 51 S.W.3d 828, 838 (Tex. App.—Texarkana 2001,
pet. denied)
But “when a depositor pays service fees and the bank in return agrees to honor
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the checks of its depositor, the depositor is a ‘consumer’ of banking ‘services’ within
the purview of the DTPA.” Bank One, Tex., N.A. v. Taylor, 970 F.2d 16, n.12 (5th Cir.
1992). And the Supreme Court of Texas found in La Sara that “the services provided
by a bank in connection with a checking account are within the scope of the DTPA.”
La Sara Grain Co. v. First Nat. Bank of Mercedes, 673 S.W.2d 558, 564 (Tex. 1984).
Felknor provides a sufficient factual basis to find that he was a “consumer” of
BOA’s services under the DTPA. He states that “[b]anking services constitute
‘services’ under the DTPA” and alleges he sought and received such services from
BOA. While the legal authorities are inconclusive, Felknor cites a sufficient legal
basis to plausibly state that he is a “consumer” under the DTPA.
3. 	Economic loss rule
The Court should dismiss Felknor’s DTPA claim because the economic
loss rule applies. Again, Felknor did not meet his “burden . . . to establish
evidence of an [] injury” independent from the contract between the parties. Id.
In his Response, Felknor did not rebut BOA’s argument in its Motion that the
economic loss rule applies.
Because he has not met his burden and has not provided any factual
basis that his harm consists of anything more than the “economic loss of a
contractual expectancy,” dismissal is appropriate on this basis. A-1 Am. Fence,
Inc., 2021 WL 7184973, at *5.
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E. 	The Court should dismiss the informal fiduciary duty claim.
BOA argues the Court should dismiss Felknor’s fiduciary duty claim because
the UCC preempts it, and Felknor has not established that BOA was serving as a
fiduciary. Like his negligence claim, Felknor bases his fiduciary duty claim on the
unauthorized transfers and the subsequent BOA acts of not investigating or taking
reasonable steps to recover the funds. See JESCO Constr. Corp., 2021 WL 9629459,
at *7. As a result, Article 4A of the UCC does not preempt his fiduciary duty claim.
But dismissal is still appropriate because Felknor has not established that
BOA owed him a fiduciary duty. Felknor has not pleaded any factual basis to rebut
the usual rule that a “bank relationship standing alone [does not] create a fiduciary
relationship.” Wells Fargo Bank, N.A., 181 S.W.3d at 801. And he does not state facts
showing that the nature of his relationship with BOA was one of trust or reliance.
Schlumberger 	Tech. 	Corp., 	959 	S.W.2d 	at 	176. 	Courts 	do 	not 	create 	such 	a
relationship lightly, and Felknor provides no factual or legal basis for doing so here.
Id. at 176-177. As a result, the Court should dismiss his informal fiduciary claim
because he has not provided a plausible factual basis for relief on this claim.
F. 	The Court should dismiss Felknor’s claims without leave to
amend.
Felknor does not plead sufficient facts to state a claim under the DTPA, for
negligence, or for breach of an informal fiduciary duty. He already amended his
complaint once and responded to the present Motion, each several pages long and
laying out the facts of his case in detail. Accordingly, the Court concludes that he has
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pleaded his best case and that further amendment of the Complaint to address the
deficiencies noted above would be futile.
IV. 	CONCLUSION
Felknor has not pleaded sufficient facts to state a claim against BOA under the
DTPA, for negligence, or for breach of an informal fiduciary duty. Therefore, the
undersigned 	RECOMMENDS 	that 	Judge 	Pittman 	GRANT 	BOA’s 	Motion 	to
Dismiss (ECF No. 18) in part and DISMISS Felknor’s claims under the DTPA, for
negligence, and for breach of an informal fiduciary duty under Federal Rules of Civil
Procedure 12(b)(6) and DENY the Motion as to Felknor’s remaining claims.
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections
within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1)(B) and Fed.
R. Civ. P. 72(b)(1). To be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s findings, conclusions, and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific written objections will bar the aggrieved party from appealing the
factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), modified by
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18
statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections
to 14 days).
It is so ORDERED on February 23, 2026.
______________________________________
Hal R. Ray, Jr.
UNITED STATES MAGISTRATE JUDGE
Case 4:25-cv-01291-P-BP Document 26 Filed 02/23/26 Page 18 of 18 PageID <pageID>