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Mark Leyse v. Bank of America

July 18, 2012

MARK LEYSE, PLAINTIFF,
v.
BANK OF AMERICA, N.A.,
DEFENDANT.



The opinion of the court was delivered by: Wigenton, District Judge.

OPINION

Before the Court is Defendant Bank of America, N. A.'s ("Defendant" or "BOA") Motion to Dismiss Mark Leyse's ("Plaintiff" or "Leyse") Complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative, to transfer this action to the Southern District of New York pursuant to 28 U.S.C. § 1404(a) ("Motion"). This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1332(d)(2)(A). Venue is proper pursuant to 28 U.S.C. § 1391(a)(2) and 1391(b)(2). This Motion is decided without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, this Court grants BOA's Motion.

FACTUAL AND PROCEDURAL BACKGROUND

On or about March 11, 2005, DialAmerica Marketing, Inc. ("DialAmerica") made a telephone call to Mark Leyse's ("Plaintiff" or "Leyse") residential telephone line on behalf of Bank of America, N. A. ("Defendant" or "BOA"). (Compl. ¶¶ 8-9.) The telephone call was directed to Plaintiff's roommate, Genevieve Dutriaux ("Dutriaux"). (Id.) The telephone call Leyse complains of was a prerecorded message which provided a call-back number. (Compl. ¶ 12.) Plaintiff alleges that upon dialing the call-back number, another prerecorded message was prompted regarding a Bank of America Credit Card. (Id.) According to Plaintiff, the following prerecorded message was prompted:

(i) Thank you for calling about the Bank of America Credit Card.

(ii) If you've already submitted your application, press1.

(iii) If you have questions about your existing Bank of America Credit Card, press 2.

(iv) To complete your request for a Bank of America Credit Card, press3.

(v) Press 4 if you would like to speak to a representative in reference to a call you received.

(Id.)

Plaintiff asserts that the prerecorded message "constitutes an advertisement of the commercial availability of property, goods, or services." (Id. ¶ 13.) Leyse further alleges that the prerecorded messages, which were sent to at least 10,000 individuals, violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S. C. § 227(b)(1)(B) and 47 C.F.R. § 64.1200(a)(2). (Id. ¶¶ 16-17.)

This is the third class action Leyse and Dutriaux have filed about the March 11, 2005 phone call. (Def.'s Br. 3.) On April 12, 2005, Dutriaux filed an action against Defendant in the Southern District of New York alleging a violation of the TCPA ("Dutriaux Action"). Dutriaux v. Bank of Am., Nat'l Ass'n, No. 05 Civ. 3838 (S.D.N.Y. filed Apr. 12, 2005). The Dutriaux Action was stayed pending the resolution of the appeals in Holster v. Gatco, Inc., 485 F. Supp. 2d 179 (E.D.N.Y. 2007), aff'd, 2008 U.S. App. LEXIS 23203 (2d Cir. Oct. 31, 2008) and Bonime v. Avaya, Inc., No. 06 Civ. 1630, 2006 U.S. Dist. LEXIS 91964 (E.D.N.Y. Dec. 20, 2006), aff'd, 547 F.3d 497 (2d Cir. 2008).*fn1 Leyse v. Bank of Am., Nat'l Ass'n, No. 09 Civ. 7654, 2010 U.S. Dist. LEXIS 58461, at *1-2 (S.D.N.Y. June 14, 2010). The Dutriaux Action was administratively closed on December 1, 2008. (Leyse Decl. Ex. 4.)

On March 10, 2009, Leyse commenced an action against BOA in the Western District of North Carolina, alleging a violation of TCPA ("North Carolina Action"). (Fioccola Decl. Ex. C); Leyse v. Bank of Am., Nat'l Ass'n, 3:09cv97, 2009 U.S. Dist. LEXIS 86577 (W.D.N.C. Sept. 1, 2009). Plaintiff's allegations were based on the same set of facts and asserted the same claim as the Dutriaux Action. Leyse, 2009 U.S. Dist. LEXIS 86577, at *4. On July 22, 2009, BOA filed a motion to dismiss or transfer the North Carolina Action to the Southern District of New York. Id. at *1. The court granted Defendant's motion and the action was transferred to the Southern District of New York. Id. at *12. In making that determination, the court noted that Leyse's motives for filing the North Carolina action were "thinly veiled" and that "it [wa]s patent from a review of the pleadings that this second action was filed . . . to circumvent New York law, which prohibits class actions that seek to recover statutory penalties unless the statute expressly permits such actions." Id. at *2 (citing N.Y.C.P.L.R. § 901(b)). In addition, the court noted that "plaintiff has engaged in inappropriate forum shopping." Id. at *10.

On September 2, 2009, the North Carolina Action was transferred to Honorable John G. Koeltl, U.S.D.J., in the Southern ...


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