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Toll v. Steven Toll

United States District Court, D. New Jersey

July 2, 2015

JAIME TOLL and RICHARD TOLL, Plaintiffs,
v.
STEVEN TOLL and TD BANK, N.A., Defendants.

AMY L. SANTAMARIA, KAPLIN STEWART MELOFF RELTER & STEIN, PC, CHERRY HILL, NJ, On behalf of plaintiffs.

SUSAN M. LEMING, JEFFREY R. JOHNSON, CHRISTOPHER A. REESE, BROWN & CONNERY, LLP, WESTMONT, NJ, On behalf of defendant TD Bank, N.A.

OPINION

NOEL L. HILLMAN, District Judge.

Presently before the Court is the motion of defendant TD Bank, N.A. to dismiss plaintiffs' amended complaint, or in the alternative, for a more definite statement. For the reasons expressed below, TD Bank's motion will be granted, and plaintiffs will be afforded 14 days to file a second amended complaint.

BACKGROUND

Plaintiff Jaime Toll is a member of, and plaintiff Richard Toll is a manager of, Toll Finance, LLC, which does business as Mystic River. On June 17, 2014, Mystic River opened a business deposit bank account at TD Bank in Mt. Laurel, New Jersey and deposited $95, 000 in the account. When the account was created, Mystic River appointed James J. Gallagher as the single authorized representative and signer of the account. Mr. Gallaher signed a New Business Account Agreement and executed a General Business Resolution, which provided that Mystic River's funds could only be withdrawn by an authorized agent on the account with his signature on file.

On August 27, 2014, Steven Toll, a member of Toll Finance, LLC/Mystic River, went to a TD Bank branch in Cherry Hill, New Jersey and requested to be added to the Mystic River bank account as an authorized representative, signer, and business agent. Plaintiffs claim that Steven Toll did this unilaterally and without their knowledge. Plaintiffs also claim that TD Bank violated Mystic River's direct and specific instructions by allowing Steven Toll to be added to the account.

On September 2, 2014, Steven Toll visited three TD Bank branches between 2:54pm and 4:00pm, and he withdrew $43, 000.00 at a Marlton branch, $34, 000.00 at a Mt. Laurel branch, and the remaining funds, plus overdraft, at a Cherry Hill branch.

Jaime Toll claims that when she and Mr. Gallagher learned about Steven Toll's emptying of the Mystic River bank account, they contacted TD Bank, but TD Bank refused to discuss the matter. They also attempted to contact Steven Toll, demanding that he return the money. Richard Toll reported Steven Toll's actions to the Evesham Police Department. On October 2, 2014, Mystic River made a formal demand upon TD Bank to return the $95, 000.00 that was improperly withdrawn from its account. Neither TD Bank nor Steven Toll has returned Mystic River's money, and because of this, Mystic River has been unable to conduct its business since September 2014.

Pursuant to N.J.S.A. 42:2C-68, Jaime Toll has brought a derivative action on behalf of Mystic River against TD Bank for violation of the Uniform Commercial Code, breach of contract, breach of the implied covenant of good faith and fair dealing, negligence, and tortious interference with prospective economic advantage, which is also asserted against Steven Toll. Jaime Toll and Richard Toll have asserted claims against Steven Toll for breach of fiduciary duty, conversion, and fraud.[1]

Defendant TD Bank filed a motion to dismiss plaintiffs' original complaint. (Docket No. 8.) Plaintiffs filed an amended complaint pursuant to Fed.R.Civ.P. 15(a)(1)(B) (Docket No. 13), which mooted TD Bank's motion. TD Bank has now filed a motion to dismiss plaintiffs' amended complaint. Plaintiffs have opposed TD Bank's motion. Steven Toll has not yet appeared in the action.[2]

DISCUSSION

A. Jurisdiction

This Court has jurisdiction over this matter pursuant to 28 U.S.C. ยง 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75, 000. Plaintiff Jaime Toll is a citizen of California, plaintiff Richard Toll is a citizen of New Jersey, defendant TD Bank is a citizen of Delaware (state of incorporation and principal place of business are both Delaware), and defendant Steven Toll is a citizen of Pennsylvania. Toll Finance LLC d/b/a Mystic ...


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