NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 14 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREA F. DURKEE, individually No. 20-55920 and on behalf of all others similarly situated, D.C. No. 3:20-cv-00347-DMS-LL

Plaintiff-Appellant,

MEMORANDUM*

v.

BANK OF AMERICA, N.A.,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, Chief District Judge, Presiding

Submitted July 8, 2021** Pasadena, California

Before: WATFORD, BUMATAY, Circuit Judges, and FREUDENTHAL,*** District Judge Dissent by Judge WATFORD

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Nancy D. Freudenthal, United States District Judge for the District of Wyoming, sitting by designation. 1 Andrea Durkee appeals the district court’s order granting Bank of America’s

(“BofA”) motion to dismiss Durkee’s first amended complaint. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm. Because the factual and procedural history

is familiar to the parties, we need not recount it in detail here.

BofA’s fee schedule assesses an international transaction fee of 3% of the U.S.

dollar amount of the transaction “if you use your card to obtain foreign currency

from an ATM. Visa or Mastercard converts the transaction into a U.S. dollar amount,

and the International Transaction Fee applies to that converted U.S. dollar amount.

ATM fees may also apply to ATM transactions. See ATM Fees section.” The ATM

fees section outlines, in detail, fees charged by BofA for using non-BofA ATMs and

only references independent ATM operator usage fees to note that they may “also”

be charged.

Durkee argues that the district court erred when it found that non-BofA

foreign ATM operator fees are part of the “transaction” to which the international

transaction fee applies. She argues that, because the fee schedule places the phrase

“ATM fees may also apply to ATM transactions” after the phrase “the International

Transaction Fee applies to that converted U.S. dollar amount,” all ATM fees,

including those assessed by foreign operators, should be considered separately and

not be included in the converted U.S. dollar amount.

2 Durkee’s arguments are not persuasive. The narrative structure she

emphasizes is followed by the specific direction to “[s]ee ATM Fees section.” That

section plainly refers to ATM fees assessed by BofA and does not apply to ATM

fees assessed by foreign ATM operators. Logically, therefore, the international

transaction fee must apply to foreign ATM fees as they are part of the converted U.S.

dollar amount of the transaction.

Durkee also argues that the district court abused its discretion in denying leave

to amend the first amended complaint. However, “[d]ismissal without leave to

amend is proper if it is clear that ‘allegation of other facts consistent with the

challenged pleading could not possibly cure the deficiency.’” Great Minds v. Office

Depot, Inc., 945 F.3d 1106, 1112 (9th Cir. 2019) (quotation omitted). Here, the

district court’s interpretation of the fee schedule was a question of law, which we

affirm. Thus, further amendment would have been futile. See id.

Durkee’s breach of contract claim fails. As her breach of the implied covenant

of good faith and fair dealing is based on the same allegations, it fails as well.

Durkee abandons her conversion claim.

AFFIRMED.

3

FILED

Durkee v. Bank of America, N.A., No. 20-55920 JUL 14 2021

MOLLY C. DWYER, CLERK

WATFORD, Circuit Judge, dissenting: U.S. COURT OF APPEALS

In my view, the term “transaction” in Durkee’s contract with Bank of

America is susceptible to more than one reasonable interpretation and is therefore

ambiguous. It strikes me as equally plausible to read the undefined term

“transaction” as referring either solely to the amount that a customer withdraws

from the ATM, or to the amount withdrawn plus any fees imposed by a third-party

ATM operator. None of the other provisions in Bank of America’s fee schedule

definitively rules out either reading. Because this case hinges on the interpretation

of an ambiguous contract term, the district court erred by dismissing it at the

pleading stage.