Apostolidis v. JP Morgan Chase & Co.

MARIA APOSTOLIDIS, Plaintiff,

v.JP MORGAN CHASE & CO., ET AL., Defendants.

No 11-CV-5664 (JFB) (WDW)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 2, 2012

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Pro se plaintiff Maria Apostolidis brings this action against JP Morgan Chase & Co. ("JP Morgan"), Chase Bank ("Chase"), Frank E. Jaraba, Chris Keel, and Nancy Robinson (collectively "defendants") alleging that defendants violated banking statutes when someone other than plaintiff, presumably plaintiff's daughter, withdrew around $147,000 from plaintiff's account without plaintiff's authorization.¹ Plaintiff seeks the return of this money and compensatory damages for pain and suffering she suffered as a result of the transaction.

Defendants filed a motion to dismiss plaintiffs' amended complaint pursuant to Rules 8 and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that plaintiff has failed to identify a viable claim, and to the extent plaintiff asserts a claim under the Electronic Funds Transfer Act, such a claim must fail because plaintiff failed to comply with the statute and the claim is barred by the statute of limitations.

For the reasons set forth below, the Court grants defendants' motion to dismiss the federal claims. The Court declines to grant plaintiff leave to re-plead her complaint, and declines to exercise supplemental jurisdiction over any potential state law claims.

I. BACKGROUND

A. Factual Background

The following facts are taken from the amended complaint and are not findings of fact by the Court. Instead, the Court assumes these facts to be true for purposes of deciding the pending motion to dismiss and will construe them in a light most favorable to plaintiff, the non-moving party.

The amended complaint alleges that, on August 14, 2009, $147,900 was withdrawn from plaintiff's personal account with Chase without plaintiff's permission. (Am. Compl. at 3, Am. Compl. Documentation at 10, 18, Feb. 24, 2012, ECF No. 14.² ) Plaintiff was in Greece from August 10, 2009 through August 22, 2009. (Am. Compl. at 3.) When plaintiff did not receive a statement, she went to the bank and "was told that [her] account is minus $147,900.16." (Id.)

Plaintiff "went to the DA office [and plaintiff] told them [she] believe[d her] daughter took the money out." (Id.) In a supplemental statement filed with plaintiff's amended complaint, plaintiff states,

[Regardless] of what was going on in my household between my husband who was very sick at the time and was being controlled by my other daughter Penny Apostolidis still no one had [the] right to take my money. Chase had no right to give my money to anyone without speaking to me. I don't understand how Chase allowed this to happen. I asked the bank how did this happen[,] who approved this [-] show me a paper with a [signed] approval[.] [T]hey never provided one piece of paper. Now I ask the [C]ourt if your money was given away what would you have done? I would like to go to trial if I didn't get my money back[,] it was mine and I want it back.

(Am. Compl. Documentation at 5.) Plaintiff filed a report with the Suffolk County Police on March 18, 2010. (Id. at 9.)

Plaintiff also contacted Chase on March 18, 2010. (Id. at 10.) On March 19, 2010 and March 26, 2010, Chase sent plaintiff two letters requesting additional information regarding her inquiry. (Id. at 10, 11.) On April 6, 2010, Chase sent plaintiff a letter informing plaintiff that "research revealed that the transaction(s) was processed correctly or was authorized." (Id. at 12.) On April 23, 2010, Chase sent plaintiff a letter that acknowledged the receipt of plaintiff's correspondence and informed plaintiff that it was investigating her concerns. (Id. at 13.) On May 4, 2010, Chase sent plaintiff a letter requesting more information, as it was unable to locate any checking or savings accounts in plaintiff's name. (Id. at 14.)

B. Procedural History

Plaintiff filed the complaint in this action on November 16, 2011. On January 24, 2012, defendants filed a letter seeking a pre-motion conference in anticipation of moving to dismiss the complaint. After discussing the motion to dismiss at the pre-motion conference on February 8, 2012, the Court granted plaintiff leave to file an amended complaint and directed defendants to submit a letter after reviewing the amended complaint proposing a date for an answer or informing the Court whether defendants intended to file a motion to dismiss the amended complaint. Plaintiff filed the amended complaint on February 24, 2012.By letter dated February 29, 2012, defendants informed the Court that they intended to proceed with the motion to dismiss. On March 5, 2012, the Court issued an Order setting a briefing schedule for the motion to dismiss. Defendants filed the motion to dismiss in accordance with that schedule on April 6, 2012. Plaintiff did not file an opposition. On July 2, 2012, the Court issued an Order directing plaintiff to submit a letter to the Court on or before July 20, 2012 explaining why plaintiff failed to respond to the motion to dismiss as directed by the Court's March 5, 2012 Order. The July 2, 2012 Order informed plaintiff that failure to respond to the Order would result in the motion to dismiss being considered by the Court without opposition papers. Plaintiff has not filed the letter or filed opposition papers with respect to defendants' motion.

II. STANDARD OF REVIEW

A. Rule 8

Rule 8 of the Federal Rules of Civil Procedure requires that pleadings present a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. Proc. 8(a)(2); Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002). Pleadings are to give "fair notice of what the plaintiff's claim is and the grounds upon which it rests" in order to enable the opposing party to answer and prepare for trial, and to identify the nature of the case. Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled in part on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).

In Twombly, the Supreme Court clarified this pleading standard, declaring that:

While, for most types of cases, the Federal Rules eliminated the cumbersome requirement that a claimant "set out in detail the facts upon which he bases his claim," Rule 8(a)(2) still requires a "showing," rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only "fair notice" of the nature of the claim, but also "grounds" on which the claim rests.

550 U.S. at 556 n.3 (quoting Conley, 355 U.S. at 47, and citing 5 C. Wright & A. Miller, Federal Practice & Procedure § 1202, at 94, 95 (3d ed. 2004)). "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.' 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) (quoting Twombly, 550 U.S. at 570).

Rule 8(a) is "not meant to impose a great burden upon a plaintiff." Dura Pharms., 544 U.S. at 347. As the Second Circuit has observed, "[d]ismissal pursuant to the rule 'is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'" Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004) (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)). In such circumstances, a court may dismiss the complaint sua sponte. See Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995).

In addition, in considering a motion under Rule 8(a), courts should liberally construe the complaint of a pro se litigant in his or her favor. Salahuddin, 861 F.2d at 42; see also Platsky v. C.I.A., 953 F.2d 26, 28 (2d Cir. 1991) ("[T]he Supreme Court has instructed the district courts to construe pro se complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than they would in reviewing a pleading submitted by counsel." (citations omitted)).

However, as the Second Circuit has held, Rule 8(a) does not indicate that "[p]laintiffs bear no burden at the pleading stage." Amron v. Morgan Stanley Inv. Advisors Inc., 464 F.3d 338, 343 (2d Cir. 2006). Instead, a court retains the power, "[w]hen a complaint does not comply with the requirement that it be short and plain, . . . to dismiss the complaint." Salahuddin, 861 F.2d at 42. "Further, if the court dismisses the complaint for failure to comply with Rule 8, it should generally give the plaintiff leave to amend. This is especially true when the complaint states a claim that is on its face nonfrivolous." Simmons, 49 F.3d at 86-87.

B. Rule 12

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). "In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient 'to raise a right to relief above the speculative level.'" Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

The Supreme Court clarified the appropriate pleading standard in ...