United States District Court, D. New Jersey
MONTELL FIGGINS, Attorneys for Plaintiff Joe Perry.
JESSICA ROSE O'NEILL OFFICE OF THE U.S. ATTORNEY DISTRICT
OF NEW JERSEY, Attorneys for Defendant National Credit Union
DONOVAN SHEA LITCHFIELD CAVO, LLP, ASHLEY D. HOBSON
LITCHFIELD CAVO, LLP, Attorneys for Defendant OCNAC #1
Federal Credit Union.
L. HILLMAN, U.S.D.J.
action, Plaintiff Joe Perry (“Plaintiff”) alleges
that Defendants National Credit Union Administration
(“NCUA”) and OCNAC #1 Federal Credit Union
“Defendants”) are liable for damages arising from
unauthorized transfers from Plaintiff's financial
accounts. This matter comes before the Court on
Defendants' motions to dismiss Plaintiff's first
amended complaint. For the reasons expressed below, these
motions will be granted.
our recitation of the facts from Plaintiff's and first
about July 9, 2014, Plaintiff opened two accounts with OCNAC.
(ECF No. 21 (“FAC” or “Amended
Complaint”) at ¶1).Shortly after doing so, Plaintiff
relocated and informed OCNAC that it needed to update his
mailing address accordingly. (FAC at ¶2). At his new
address, Plaintiff received various communications from OCNAC
but alleges he never received quarterly account statements.
(FAC at ¶2).
March 30, 2017, Plaintiff visited OCNAC's offices and
learned of several unauthorized transfers from his accounts.
(FAC at ¶3). Plaintiff's initial complaint explains
that these transactions occurred between July 10, 2014 and
April 22, 2015. (ECF No. 1-1 (“Initial Comp.”
or “Initial Complaint”) at 11). Plaintiff asserts
that these transfers - which occurred by check, transfer, and
Automated Clearing House (ACH) payment -were initiated by his
estranged wife who he never authorized to access these
accounts. (FAC at ¶3). Plaintiff disputed these
transactions with OCNAC. (FAC at ¶4).
20, 2017, Plaintiff also filed a complaint with NCUA relating
to these unauthorized transactions. (FAC at ¶6).
Plaintiff sought, as a remedy, a refund of the total amount
withdrawn without his authority. (FAC at ¶6).
that same time, on July 26, 2017, Plaintiff wrote OCNAC
requesting resolution of his claim. (FAC at ¶9). On
August 2, 2017, OCNAC denied Plaintiff's claim on the
basis that he failed to notify OCNAC within 60 days of the
unauthorized transactions, as was required under OCNAC's
account-holder agreement. (FAC at ¶10).
October 2, 2017, NCUA denied Plaintiff's complaint on the
grounds that the transactions at issue were not
“unauthorized[, ]” as that term is defined by the
Electronic Fund Transfer Act, 15 U.S.C. § 1693 et
seq. (the “EFTA”). (FAC at ¶11).
Plaintiff was advised of his appeal rights and subsequently
retained counsel to appeal NCUA's decision. (FAC at
¶¶11-12). Plaintiff's appeal was unsuccessful.
(FAC at ¶12).
December 4, 2018, Plaintiff filed the Initial Complaint in
the Superior Court of New Jersey, Camden County. NCUA removed
the action to this Court on January 7, 2019. Plaintiff filed
the Amended Complaint on May 14, 2019. The Amended Complaint
contains four (4) counts:
• Count One sounds in negligence, and is brought against
• Count Two sounds in breach of contract, and is brought
against all Defendants;
• Count Three is brought against OCNAC for alleged
violations of the EFTA; and
• Count Four is brought against NCUA for alleged
violations of the Federal Credit Union Act
(“FCUA”), 12 U.S.C. § 1751 et seq.
moved to dismiss the Amended Complaint on May 28, 2019 and
June 17, 2019 respectively (the “Motions to
Dismiss”). (ECF Nos. 22 & 25). Plaintiff opposed
Defendants' Motions to Dismiss. (ECF No. 26). As such,
the present motions are fully briefed and ripe for
Subject Matter Jurisdiction
filed this action against several defendants, including NCUA,
which is a federal agency. NCUA removed this action to this
Court pursuant to 28 U.S.C. § 1442(a)(1). This Court
exercises subject matter jurisdiction pursuant to that
Motion to Dismiss Standard
seeks to dismiss Plaintiff's Amended Complaint for lack
of subject matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(b)(1), or otherwise for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
OCNAC also asks this Court to dismiss the Amended Complaint
pursuant to Rule 12(b)(6).
Federal Rule of Civil Procedure 12(b)(1) Standard
Federal Rule of Civil Procedure 12(b)(1), a claim can be
dismissed for “lack of jurisdiction over the subject
matter.” A motion under Rule 12(b)(1) “attacks
the right of a plaintiff to be heard in Federal Court.”
Doughty v. U.S. Postal Serv., 359 F.Supp.2d 361, 364
(D.N.J. 2005) (quoting Cohen v. Kurtzman, 45
F.Supp.2d 423, 428 (D.N.J. 1999)). There are two types of
Rule 12(b)(1) motions: one which presents a “facial
challenge” and one which presents a “factual
challenge.” See Constitution Party of Pa.
v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014) (citing
In re Schering Plough Corp. Intron, 678 F.3d 235,
243 (3d Cir. 2012)); Petruska v. Gannon Univ., 462
F.3d 294, 302 n.3 (3d Cir. 2006) (citing Mortensen v.
First Fed. Sav. & Loan Ass'n, 549 F.2d
884, 891 (3d Cir. 1977)).
motion to dismiss presents a “facial attack, ” a
court must assume the allegations in a complaint are true and
may only dismiss claims when the pleadings fail to present an
action within a court's jurisdiction. Mortensen,
549 F.2d at 891. “[I]n that respect such a Rule
12(b)(1) motion is similar to a Rule 12(b)(6) motion.”
Petruska, 462 F.3d at 302 n.3 (citing
Mortensen, 549 F.2d at 891). By contrast, when the
motion to dismiss presents a factual attack,
there is substantial authority that the trial court is free
to weigh the evidence and satisfy itself as to the existence
of its power to hear the case. In short, no presumptive
truthfulness attaches to plaintiff's allegations, and the
existence of disputed material facts will not preclude the
trial court from evaluating for itself the merits of
jurisdictional claims. Moreover, the plaintiff will have the
burden of proof that jurisdiction does in fact exist.
Mortensen, 549 F.2d at 891; see also
Aichele, 757 F.3d at 358 (explaining differences between
a facial and factual attack under Rule 12(b)(1)).
Federal Rule of Civil Procedure 12(b)(6) Standard
considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6), a court must accept
all well-pleaded allegations in the complaint as true and
view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well settled that a pleading is sufficient if it
contains “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do . . . .” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration
in original) (citations omitted) (first citing Conley v.
Gibson, 355 U.S. 41, 47 (1957); Sanjuan v. Am. Bd.
of Psychiatry & Neurology, Inc., 40 F.3d 247, 251
(7th Cir. 1994); and then citing Papasan v. Allain,
478 U.S. 265, 286 (1986)).
To determine the sufficiency of a complaint, a court must
take three steps. First, the court must “tak[e] note of
the elements a plaintiff must plead to state a claim.”
Second, the court should identify allegations that,
“because they are no more than conclusions, are not
entitled to the assumption of truth.” Third,
“whe[n] there are well-pleaded factual allegations, a
court should ...