Thomas v. Dover Federal Credit Union - Motion to Dismiss Granted

1 IN THE SUPE RIOR COURT O F THE STATE O F DEL AWARE AMY THOMAS, on behalf of her self) and all others similarly s ituated,)) C.A. No. K 2 4C - 12 -0 09 RLG Plaintif f,)) DOVER FE DERAL CREDIT) UNION,)) Defendant.) Submitted: Novem ber 19, 2025 Decided: Februar y 27, 2026 OPINION Upon Defendant’ s Motion to D ismiss – GRANTED Lisa M. La Fornara, Esquire (ar gued) (PHV), Cohen & Malad, LLP, Indianapolis, Indiana. J. G erard St ranch, IV, E squire (PHV), Stranch, Jennings & Garvey, PLLC, Nashville, T ennessee. Derrick B. Farrell, Esquire; Lesley E. W eaver, Esquire; Matthew L. Miller, Esquire; a nd Robert B. Lackey, Esquire, Bleichmar Fonti & Auld LLP, W ilming ton, Delaware. Attorneys for P laintiff. 1 Scott R. Si nson (PHV), E squire and K evin A. Ameriks, E s quire (PHV), Gordon R ees Scully Mansukhani, Chicago, Illinois. Krista M. Reale, Esquire, Margolis Edelstein, W ilmington, Delawar e. Attorneys for De fendant. GREEN-STREETT, J. 1 The listed attorneys at Bleichmar Fonti & Auld LLP represented Plaintiff at the time of the October 24, 2025 hearing. On February 18, 2026, while the Court’ s dec ision was still pending on Defendant’ s Motion to Dismiss, local counsel for Plaintiff was substituted. Plainti f f is no w represented by P eter B. Andrews, Esquire and David M. Sborz of Andrews and Springer LLC. Ms. La Fornara and Mr. S tranch, formerly entered pr o hac vice, remain. See D.I. 36 (Feb. 18, 2026).

2 I. Intr oduction A member of a credit union attem pted to make a payment to a merchant without suf ficient funds in her account to cover the t ransact ion. The credit union rejected the transa ction and char g ed the memb er a fee for insuf ficient funds. The merchant resubmitted the transaction and the credit union reject ed the transaction a second time, resulting in another fee for insuf ficient funds. T he member brought the instant litigation, alleging the second fee breached her member ship agreement with the credit union. A s the second fee did not b reach the membership agreement, the credit union’ s Motion to Dism iss is GRANTED. II. Factual and P ro cedural Bac kgr ound A. The underlyin g transaction In 2024, Plaintif f Am y Thomas maintaine d a checking account as a member of Defendant Dover Federal Credit Union (“Dov er”). 2 On October 4, 2024, Ms. Thomas attempted to mak e a payment from t hat checking account for $1,272.00. 3 Dover rejecte d that pa yment bec ause of insuf ficient funds i n Ms. Thomas’ s c hecking account, and charge d her a $30.00 fee. 4 On October 9, 2024, the merchant resubmitted the p ayment request, and Dover attempted to p rocess the payment a 2 Compl. at 1 1. 3 Id. 4 Id.

3 second time. 5 Dover rejected the transaction aga in for insuff icient funds, and char ged Ms. Thomas a s econd $30.00 fee for insuf ficient funds. 6 In total, Dover char ged Ms. Thomas $60.00 in fees f or the failed transacti ons. 7 B. The instant litig ation and the member s hip agr eements Ms. Thomas filed her Co mplai nt on December 6, 2024, alleging breach of contract; breach of the duty of good faith and fair dealing; unjus t enrichment; and a violation of the Delaware Uniform Deceptive T rade Practices Act. 8 Ms. Thomas raised t hese a llegations individually, as well as by c lass a ction under Superior Court Civil Rule 23. 9 In support of her allegations, Ms. Thomas attached a membership agreement issued by Dover dated 2016 (the “2016 Agreement”) 10 and Dover ’ s fee schedule that noted an effec tive date of September 1, 2024 (the “20 24 Fee Schedule”). 11 5 Id. 6 Id. 7 Id. 8 Id. at 17-20. 9 Id. at 13. 10 Compl. Ex. A (the “2016 Agreement”). 11 Compl. Ex. B (the “2024 Fee Schedule”).

4 The 2016 Agreement informs membe rs, “[i]f a check, i tem[,] or transac tion is presented without suf ficient funds in your account to p ay it, we ma y, at our discretion, pay t he item (creating an overdraft) or return the item for insuff i cient funds (NSF).” 12 The 2024 Fee Sc hedule i dentifies a fee for “ACH NSF per Item/Paid or Re turned” totaling $30.00. 13 The 2024 Fee Schedule also l ists a fee for “NSF Bill Pay pe r item” of $30.00. 14 On February 5, 2025, Dover filed the insta nt Motion to Dismiss under Superior Cour t Civil Rule 12(b)(6) for failure to state a claim and 12(b)(1) for lack of subject matter j urisdictio n. 15 In support of its Motion, D over attached a d iff erent membership agreement dated 2019 (the “2019 Agreement ”) 16 and a diff erent fee schedule ef fective Ma y 7, 2021 (the “2021 Fee Sch edule”). 17 Although the dispara te fee schedules appear largel y consistent, the two memb ership agreements (collectively, the “Membership Agreements ”) are materiall y dif fe rent. Crit ically, the 12 The 2016 Agreement at 3. 13 The 2024 Fee Schedule at 1. 14 Id. at 5. 15 Mot. to Dismiss at 1. 16 Mot. to Dismiss Ex. A (the “ 2019 Agreement”). 17 Mot. to Dismiss Ex. B (the “2021 Fee Schedule”).

5 2019 Agreement contains a paragraph after the heading “N onsuf fi cient funds (NSF fees),” outlinin g that: If an i tem drafted by you (such as a c heck) or a transactio n you set up (such as a preauthorized transfer) is presented for payment in an amount that is more tha n the amount of money available in yo ur account, and we decide no t to pay the item or transaction, you agree that we can ch ar ge you an N SF fee for returning th e payment. Be aware that such an item or payment may be presented multiple times and that we do not monitor or contro l the number of times a transaction is presented for payment. Y ou agree t hat we may charg e you an NSF fee each time a payment is presented if the am ount of money av ai lable in your account is not s uf ficient t o cover the payment, reg ardle ss of the numbe r of time s the payment i s presented. 18 Dover ’ s Motion focused on the validity of Ms. Thomas’ s claims under the 2019 Agreement. Ms. Thomas filed her Response to D over ’ s Motion to Dis miss on March 7, 2025. A t that t ime, M s. Thomas volu ntarily dismi ssed her claim u nder t he Delaware Uniform Deceptive T rade Practices Act. 19 Aside from disputing Dover ’ s interpretatio n of the two agreements generally, Ms. Thomas also asserted, “Dover has not authent icated the ef fective dates of the purpor ted contrac t documents it seek s 18 The 2019 Agreement at 2. 19 Resp. at 2 n.2.

6 to introduce.” 20 Accordingly, Ms. T homas contended a factual dispute existed over which agreem ent should contr ol the Court’ s analysis. 21 Dover responded by providing an affidavit from its authorized ag ent, averring the 2019 Agreement t ook effect before Ms. Thomas’ s failed transact ion and Dover ’ s imposition of t he two fees for insuff icient f unds (the “Af fidavit”). 22 The parties each submitted supplemental filings providing additional decisional law from various jurisdictions in support of their respec tive positions. 23 After a continuance permitting the parties to engage in settlement negotiations, 24 the Court held oral arg ument on O ctober 24, 2025. 25 III. Standard of Rev iew Under Superior Court Civil Rule 12(b)(6), this Court views t he Complaint “in [a] light most favorable to the nonmoving party, accepting as true its well -pled allegations and drawing all reasonable inferences that logically flow from those 20 Resp. at 4. 21 Id. at 9-10. 22 Def.’ s Reply Ex. A. S ee D.I. 1 1 (Mar. 18, 2025). 23 Pl.’ s Suppl. Filing, D.I. 29 (Oct. 16, 2025); Def.’ s Suppl. Filing, D.I. 31 (Oct. 22, 2025). 24 See D.I. 24 (Jun. 24, 2025). 25 T r. of Oral A r g., D.I. 34 (Nov. 19, 2025) (hereinafter, “T r. at __”).

7 allegations.” 26 The Cou rt does not accept “conclusory allegations unsupported by specific facts,” nor does it “draw unreasonable inferences in the plaintif f ’ s favor.” 27 This Court only grants a motion to dismiss under Rule 12(b)(6) when “the plaintif f would not be entitled to recover under any reasonably conceiva ble set of circumstanc es susceptible [to] proof.” 28 If, on a motion to dismiss under Rule 12(b)(6), extrinsic ma terials outside the pleadin gs are considered by the Court, “th e motion s hall be treated as one for summary judgment … and al l parties shall be give n reasonable o pportu nity to present all material made p ertine nt to such a motion by Rule 56.” Super ior C ourt C ivil Rule 12(b)(1) requir es t he C ourt to dismiss any claim where the Co urt lacks subject m atter juri sdiction. 29 IV. Analysi s A. Ms. Thomas’ s claim s ar e not pr eempted by federal law As a threshold matter, th e Court finds it has subject matter jurisdiction over Ms. Thomas’ s claims and declines to dismiss the Complaint under Superior Court Civil Rule 12(b)(1). Dover ar gues the Complaint seeks to c hallenge the language of 26 W indsor I, LLC v. CWCapital Asset Management LLC, 238 A.3d 863, 871 (Del. 2020) (interna l quotations omitted) (quoting Deuley v. DynCorp Int’l, Inc., 8 A.3d 1 156, 1 160 (Del. 2010)). 27 Id. (internal quotations omitted). 28 Id. (internal quotations omitted). 29 See In re Proton Pump Inhibitors P roducts Liabilit y Litigation, 2023 WL 5165406, at *5 (Del. Super. Aug. 1 1, 2023).

8 disclosures in the Membership Agreements. 30 As federal regulations govern the required disclosures in an agreement b etw een a credit union and its members, 31 Dover ar gues any claims roote d in a cha llenge to that language has been preempte d by federal law. 32 “Under the Supremacy Clause of the United States Constitution, federal l aw preempts contra ry state law.” 33 12 C.F.R. § 707 regulate s credit unions, demarcati ng that, “[s]tate law requirements that are inconsiste nt with the requirements o f the TISA [(T ruth in Savings Act)] and t his part are preempted to the extent of the inconsistency.” 34 12 C.F.R. §707.4(b)(4) requires disc losure of “[t]he amount of a ny fee that may be i mp osed in connecti on with the account (or an explanation of how the fee will be de termined) a nd the conditi ons under whic h the fee may b e imposed.” “[S]tate law claims regarding a federal credit union’ s failure to disclose certain fee practices or any perceived unfairness in the fee practices themse lves are preempted.” 35 30 Mot. to Dismiss at 19. 31 See 12 C.F.R. § 707 et seq. 32 Mot. to Dismiss at 19. 33 Gonz alez v. State, 207 A.3d 147, 154 (Del. 2019) (internal quotations omitt ed) (quoting Hughes v. T alen Ener gy M arketing, LLC, 578 U.S. 150, 159 (2016)). 34 12 C.F.R. § 707.1(d). 35 Lambert v. Na vy Federal Credit Union, 2019 WL 3843064, at *2 (E.D. V a. Aug. 14, 2019).

9 “On the other hand, it is equally well establis hed that true breach of contract and affirma t ive misreprese ntation claims are n ot federally preempted.” 36 Dover characterizes the Complaint as “actually challenging that Dover ’ s fee practices are not adequately disclosed.” 37 T he Complaint, when read in its entirety, alleges tha t the Membership A greements expressly prohibit a second fee for insufficie nt funds derived from the reprocessi ng of a previously failed transaction. 38 Disagreeme nt over what the Membership Agreements permit and disclose are inherent to the dispute between the parties, but the Compla int asserts Dover violated the terms of the Mem bership Agreement s. 12 C.F.R. § 707 does n ot p ermit federal credit unions to violate their contracts. I t preempts Delaware law o nly to the extent that Delaware law would be “i nconsiste nt with” 12 C.F.R. § 707’ s requirements. 39 Dover correc tly points o ut that an y allegati on that it f ailed to p roperly disc lose fees, o r any assertion of unfairness in the fee structure, would likely be preempted by 12 C.F.R. § 707. Requiring Dover to abide by the terms of the Membership Agreements, as the Complaint alleges Dover failed to do, does not contrad ict any 36 Id. 37 Mot. to Dismiss at 20. 38 See Compl. at 10 (“These promises mean that Defendant may a sses a “ fee” (singular) of $30.00 per Item/Paid or Returned. In breach of these p romises, Defendant assesses multiple $30.00 fees per item.”). 39 12 C.F.R. § 707.1(d).

10 federal regulation. Accordingly, Ms. Thomas’ s claims are not preempted, and this Court has s ubject mat ter jurisdicti on to consi der them on t heir meri ts. B. The Court will not co nsider the 2 019 Membership Agre ement at this stage of the L itigati on 40 The Court must next determine under which o f the Membership Agreement s it must evaluate D over ’ s Motion to D ismiss. Dover a ttached the 2019 Agreement to its Motion and co ntends that the Court may consider that document as incorpora ted by reference in, and integral to, the Com plaint. 41 In the alt erna tive, Dover request s the Court convert Dover ’ s Motion to one for Summary Judgment as permi tted by Superior Court C ivil Rul e 12(b). 42 Certainly, the C omplaint relies heavily on the language co ntained in the 2 016 Agreement. If the parties agreed that Ms. T homas attached the 2 016 Agreeme nt i n error, and the 2019 Agreement serve d as the operative contract at the time o f the disputed fees, the Court could consider the 2019 Agreement as integral to the Complaint. In her Response, howev er, Ms. T homas disputes the validity of the 2019 Agreement. 43 40 At o ral argument, Dover conceded the fee schedule attached to the Complaint, the 2024 Fee Schedule, was the correct fee schedule. Tr. a t 38. 41 Mot. to Dismiss at 5. 42 T r. at 10. 43 Resp. at 10.

11 Dover arg ues the Af fi davit obviates the need for any discovery to resolve the dispute between the parties about which of th e Membership Agreements controls. 44 The Court’ s consider ation of the Affidav it, however, necessari ly requires the Court to consider a document o utside the p lea dings. “When a trial court considers a document outside the complaint, the motio n t o dismiss us ually is conv erte d i nto one for summary j udgment, which al lows the parties to e xpand the recor d.” 45 Thus, t he q uestio n be comes w hether the Court should convert Dover ’ s Motion to Dismiss into a Motion for Summary Judgment. Dover first request ed the Court convert its Motion during o ral argum ent. 46 Before oral ar gument, Ms. Thoma s received no fo rmal notice that the Motion to Dismiss might tra nsform into a mo tion for summary judgme n t nor that Do ver would make t hat request. Similarly, the Court gave no prior i ndication that it inte nded to co nvert Dover’ s Motion. 44 T r. at 10-1 1. 45 W indsor, 238 A.3d at 875. 46 T r. at 1 1.

12 The Delaware Supreme Court addressed the conversio n of a motion to dismiss into a m otion for s ummary judgment in Appriva Shareh older Li tigation Co., L LC v. EV3, Inc. 47 It held: Any sua sponte conversion by the trial judge should be “exercised with great caution and attention to t he parties’ procedural rights…” Before a motion to dismiss may be converted to one for summary judgment, parties must be given adequate notice and a reasonable o pportunity to present pertinent material. Accordingly, and consistent with Rule 5 6(c), we hold that the Super ior Court mu st give the par ties at least te n day s notice of its intent to c o nvert a Rule 12(b)(6) moti on to dismis s into a Ru le 56 motion for summary judgm ent. 48 The record reflects that Ms. Thoma s did not receive any formal notice b efore oral arg ument that the Motion to Dismiss would be conver ted to a motion for summary judgment. The Court apprecia tes that Ms. Thomas did possess actual notice that Dover intended to rely on the 2019 A greement as soon as Dover filed its Motion to Dismiss with the 2019 Agree ment attached. Fu rther, Ms. Thomas ar gued the validity of her claims under the 2 019 Agreement – both at oral argume nt 49 and in her Response. 50 47 937 A.2d 1275, 1288 (Del. 2007). 48 Id. 49 T r. at 25. 50 Resp. at 1 1.

13 Nevertheless, this Court remains bound b y Delaware Supreme Court precedent, requiring that Ms. Thomas have at least ten d ays ’ notice of the Court’ s intent to convert the Moti on to a motion for s ummar y j udgment. As Dove r did not make that request until oral ar gument, the Court did not give any indication that it would entertain converting the Motion to Dismiss u ntil oral ar gument. This Court finds Ms. Thomas rece ived inadequate notice. The Court will not convert Dover ’ s Motion a t this juncture, and will not consider t he Af fidavit. As the Court will not consi der the Af fidavit witho ut af fording Ms. Thomas the chance to rebut it, the Court cannot resolve the dispute over which membership agreement applies. At this time, the Court will not substitute the 2019 Agreement for t he 2016 Agreement that M s. Thomas attac hed to the C omplaint. On a motion to dismiss, the Court must accept well -pled factual allegations made by the plaintif f. Ms. Thomas alleges the 2016 Agreemen t controls. Accordingly, the Court w ill evaluate Dover’ s Motion to Dism iss un der t he la nguage of the 2016 Agreement. C. Ms. Thomas’ s claim for bre ach of contract fails under the 2016 Agr eement and 2024 Fee Schedu le Ms. Thomas al leges that Dover “breached the expres s term s o f its ow n agreements.” 51 As noted, supra, this claim d oes not assert that Dover failed to 51 Compl. at 17.

14 disclose its ability to char ge multiple fees per t ransact ion. Instead, Ms. Thomas alleges the 2016 agreeme nt forbids the char g ing of multiple fees for insuf ficient funds. “T o determine what contractual parties intended, Delaware courts s tart with the text.” 52 “Delaware adheres to the ‘ objective’ the ory of contracts, i.e. a contrac t’ s construction should be that which would be understood by an objecti ve, reasonable third party.” 53 “A contr act is ambiguous only when the provisions in contr oversy are reasonably or fairly susceptible [to] dif ferent interpretations or may have t wo or more dif ferent meanings.” 54 “The contract mu st also be read as a whole, givin g meaning to each term and avoiding an int erpr etation that would render any t erm ‘mere surplusa ge.’” 55 The 2016 agreem ent prov ides, “[i]f a c heck, item[,] o r transac tion is presente d without suf ficient funds in yo ur account to p ay it, we may, at our di scretion, pay t he item (creating an ov erdraf t) or return the i tem for insufficien t funds (NSF).” 56 The 52 Sunline Commercial Carriers, Inc. v. CITGO Petroleum Corp., 206 A.3d 836, 846 (Del. 2019). 53 NBC Universal v. Paxso n Commc’ns Corp., 2005 W L 1038997, at *5 (Del. Ch. Apr. 29, 2005). 54 Rhone-Poulenc Basic Chemicals Co. v. Am. Motorists Ins. Co., 616 A.2d 1 192, 1 196 (Del. 1992). 55 Sunline Commercial Carriers, 206 A.3d at 846. 56 The 2016 Agreement at 3.

15 2024 Fee Sched uled authorizes a $30.0 0 fee for “ACH NSF per item/Paid or Returned.” 57 Ms. Thomas p osits t his language ex pressly limits Dov er to assessing a “singular” fee per item. 58 She goes on to argue “[t]he same i tem on an accou nt cannot conceivably become a n ew one each time it is rejected for payment t he n reprocessed es pecially whe n – as here – Plaintif f took no action to resubmit i t.” 59 The Court finds an example provided in the 2016 Agree ment instructive of the parties’ int en t. T o illustra te how a member could incur an insuf ficient fund s fee because of a temporary hold on the member ’ s account whe n the member opted into overdraft ser vices for “everyday debit c ard transact ions,” the 201 6 Agreement explains: Y ou have $120 in your account. Y ou swipe your card at the card reader on a gasoline pump. Si nce it is u nclear what the final bill will be, the gas station’ s p rocessing system immediate ly requests a hold on your account in a specified am ount, f or exam ple, $80. Our processing system authorizes a temporary hold on y our account in the amount of $80, and the gas station’ s processing system authorizes you to begin pumping. Y ou fill your tank and the amount of gasoline you purchased is only $50. Our processing system shows that you have $40 in your account available for other transactions… Later, another transaction is pre sented f or payme nt from your acc ount in the amount of $60 (this could be a check you have written, another debit card transact ion, an ACH debit o r any other 57 The 2024 Fee Schedule at 1. 58 Compl. at 10. 59 Id.

16 kind of paym ent re quest). This o ther transaction is presented before the amount of the tem porary hold is adjusted to the amount of your purchase … Because th e amount of this other t ransaction is greater t han the amo unt our processi ng system shows i s available in your account, our payment o f this transacti on will result in an overdraft transaction. Because the tra nsaction over draws you r account by $20, your account will be assessed the overdraft fee of $35 accordin g to our pol icy… 60 Though that exam ple specifies what ha ppens in the event of an overdraft, the preceding paragraph notes the same process applies if Dover declines to pay the item, resulting in t he transaction failing for insufficie nt funds. 61 Another example provided in the 2016 Agreement, this time in relation to the payment order of “items,” further clarifies the process initia ted when a member attempts to use her account to pa y for somet hing: If a check, item o r transaction is presented without suf ficient funds in your account to pay it we may, at our discretion, pay the item (creating an overdraft) or return the it em for i nsuff i cient funds (NSF)… The amounts of the overdraft and NSF fees are disclosed elsewhere … W e encourage you to make careful records and practice goo d account management. This will h elp you avoid creating items without suffici ent funds and potentially incurring the resulting fees. 62 60 2016 Agreement at 2. 61 Id. 62 Id. at 3 (emphasis added).

17 From t hese two exam ples, the process of incurring a fee for insuf ficient funds becomes clear. When a member authorizes a payment to draw from her account, that authorizat ion creates an “ item.” In that con text, the it em equates to the transaction between the member and the merchant. The member agrees to pay the merchant money in exchange for goods or services. The merchant then presen ts that item to Dover to receive payment. After receiving t he item, Dover determines if the member ’ s account has suf ficient funds to cover the item. If the account displays insuf ficient funds, Dover may reject the i tem and charge the member a $30 NSF fee, as outlined in the 2024 Fee Sc hedule. Ms. Thomas and Dover agree that Dover may char ge that fee the first time Dover rejects an item. The heart of Ms. Thomas’ s Complaint asserts n o other fee may be char g ed in relation to that t ransa ction. 63 She bases t hat ar g ument on her contention that the 2016 Membership Agreement fails to explain the process by which an item gets pr esented to Do ver. At oral ar gument, while address ing the lan guage of the 2019 A greement, Ms. Thomas a r gued the Membership Agree ments do not “clarify whether i t’ s the merchant that’ s presenting or whether it’ s the customer who’ s p resent ing.” 64 Ms. 63 Compl. at 10. 64 T r. at 26.

18 Thomas further posited that “it’ s the customer ’ s creation of the i tem that results i n fees, n ot a third-party merchant’ s unilateral resub mi ssion o f the transaction.” 65 As shown above, however, the 2016 A greement u nam biguously provides that an item gets presente d after the mem ber authorize s a transac tion. 66 Further, Ms. Thoma s’ s argument relies on the belief that a merchant’ s decision to resubmi t a payment aft er it fails lacks the requisite authorizati on of the member who initially authorized the payment. Essentially, Ms. Thomas posits the merchant enjoys one chance to s ubmit the item to Dover for p ayme nt, and, if the payme nt fail s, the merchant must seek out the member and obtain authorization to resubmit the item for payme nt. T hat argume nt misapprehends how f inancial t ran sactions procedurally unfo ld and requires a d epar ture from comm on sens e. In Ms. Thom as’ s version of the payment process, a member could use her debit card to purchase goods at a store, creating an item that t he store then presents to Dover for p ayme nt. If the member has insuf fic ient funds t o cover the transaction, Dover could then re ject the payment. The merchant would then be unable to receive payment for the g ood s with which the member walked out of the store – unless the member reauthorize s the payment. The member, however, already ag reed with the 65 Id. 66 2016 Agreement at 2.

19 merchant to p ay for the goods. It would be i llogical to require the merchant to ask for permission a second time to seek payment for goods for which the member already agree d to pay. Accordingly, after the first i tem gets rejecte d, the merchant maintains the requisite authorization to create and present a new item to seek payment from Dover on the member’ s beh alf. An ite m re quires the merchant t o provide som ething t o the member for which the member wishes to pay, and the member to authorize payment from her account with Dover to the merchant. The fact that the first item faile d because the member did not have suf ficient funds to cover the transaction does not rescind the member ’ s grant of authoriza tion to the merchant to p resent the item to Dover for pa ymen t. The belief that an item cannot be res ubmitted as a new item for payment after failing for insuffi cient funds finds no support in the 2016 Agreement. Ms. Thomas cites no provision in t he 2016 Agreemen t to support her contention to the contrary. When a merchant presents an item for payment, and the member does not have suf ficient funds to pay the item, the 2016 Agreement expressly authorize s Dover to reject the item and ch arge t he member a $30.00 fee. No terms in the 2016 Agreement prevent Dover from char gi ng t hat fee each time it rejects an item, irrespective of whether Dover has already rejected an item for the same underlying t ran saction.

20 Thus, Dover did not breach the 2016 Agreement by chargi ng Ms. Thomas a $30.00 fee for the rejected item on Oc tober 9, 2 024. D. Dover did not br each its duty of g ood faith and f air dealing Ms. Thomas next alleges Dover breached the implied covenant of good faith and fair dealing by char ging the second $30.00 fee. 67 She bases that allegation on her assertion that the 2 016 Agreeme nt p romis es to charge only one fee per rejected item. 68 As e xplained above, t he 2016 Agreement does n ot so pro mise. “The implied covenant [of good faith and fair dealing] is inherent in all contracts and ensures that parties do not frustrate the fruits of the bargain by acting arbitrarily o r unreasonably.” 69 “The covenant also encompasses the principle of contract construction that if one party is given discretion in d ete rmining whether a condition in fact has oc curred, that party m u st use good faith in making that determination.” 70 “Courts utilize the i mp lied covenant to infer contract terms to handle development s or contrac tual gaps that the asserting party pleads neither party 67 Compl. at 18. 68 Resp. at 23. 69 B aldwin v. New W ood Res. LLC, 283 A.3d 1099, 1 1 16 (Del. 2022) (internal quotations omitted) (quoting Dieckman v. R egency GP LP, 155 A.3d 358, 367 (Del. 2017)). 70 Id. (internal quotations omitted) (quoting W ilmington Leasing, Inc. v. Parr ish Leasing Co., L.P., 1996 W L 560190, at *2 (Del. Ch. Sept. 25, 1996)).

21 anticipated, and co urts will invoke the implied covenant to imply terms when necessary to pr otect the rea sonable e xpectations of t he parties.” 71 Here, Ms. Thomas has not i dentifie d a contractua l gap that the C o urt n eed s t o fill. The 2016 Agree ment permits Dover to charge a fee when it rejects an i tem for insuf ficient fund s. The 2016 Agreement does not bar Dover from char ging a fee when a merchant re submits an item for payment tied to a transactio n for which the merchant previous ly submitted an item. Similarly, Ms. T homas has not alleged facts that would support an allegation that Dover abused its discretion to assess fees when it rejects items for insuf ficien t funds. Ms. Thomas has alleged Dover char ged her two fees, separated by several days, totaling $ 60.00 based on one transaction made with a merchant that she did not h ave an adequate account balance to cover. That allegation does not rise to the level of b reac hing Dover ’ s duty of g ood faith, nor do es it frustrate the purpose of t he 2016 Agree ment. Thus, M s. Thomas’ s claim for brea ch of goo d faith a nd fair deal ing must be dismi ssed. E. As the parties ar e bound by a contract, M s. Thomas’ s unjust enrichment cla im must be d ismissed Ms. Thomas’ s final claim, pled in th e alternative, asks the Court to find that Dover “know ingly re ceived and retaine d wrongfu l benefit s and f unds from Plaintif f 71 Id. (internal quotations omitted) (quoting Dieckman, 155 A.3d at 357).

22 and mem bers of the Class.” 72 Ms. Thomas brings this claim “s olely in the alternative to Plaintif f ’ s breach of contract claim and applies o nly if t he parties’ contracts are deemed unconscionable or otherwise unenforceable f or any reason.” The Court does not find the parties’ contracts are unconscionable or otherwise unenforceable. Accordingly, this clai m must be d ismissed. V. Conclusion The parties dispute which contract should ap ply, and the Court cannot resolve that dispute on a motion to d ismiss. The Court can, however, evaluate the Motion to Dismiss under the terms of the contract Ms. Thomas attache d to the Complaint – the 2016 Agreement. Dover ’ s alleged conduct did not violate the unambiguous terms of the 2016 Agr eement, nor d id it violate its duty of go od faith and fair dea ling. Ms. Thomas has not pled allegations that would permit recovery under the 2016 Agreement. D over ’ s Motion to Dismi ss is GRANTED. IT IS S O ORDER ED. 72 Compl. at 19.