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H:\Linda's Files\Motions\Azose 2Ndmd Efta Cv07-4995.Wpd Case 2:07-cv-04995-DRH-ARL Document 41 Filed 01/26/10 Page 1 of 19 PageID #: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK __________________________________________ SOLOMON AZOSE and NATALIE AZOSE, Individually and on behalf of all others similarly situated, Plaintiffs, MEMORANDUM & ORDER -v.- 07-CV-4995 (DRH)(ARL) J.P. MORGAN CHASE BANK, NATIONAL ASSOCIATION, Defendant. ____________________________________________ Appearances: For the Plaintiffs: HARRY I. KATZ, P.C. 61-25 Utopia Parkway Fresh Meadows, New York 11365 By: Harry I. Katz, Esq. Victoria L. Weinman, Esq. For the Defendant WILMER CUTLER PICKERING HALE & DORR LLP 399 Park Avenue New York, New York 10022 By: Christopher R. Lipsett, Esq. Alan E. Schoenfeld, Esq. HURLEY, Senior District Judge: Plaintiffs Solomon Azose and Natalie Azose, individually and on behalf of all persons similarly situated, (“Plaintiffs”), filed the present class action against Defendant JP Morgan Chase Bank, National Association (“Chase” or “Defendant”)1 alleging violations of the 1Defendant JPMorgan Chase Bank, North America is the sole remaining defendant in this action. The Amended Complaint named Washington Mutual Bank, J.P. Morgan Chase Bank, National Association, and J.P. Morgan Chase & Co. As defendants. (Am. Compl., filed December 22, 2008.) By Order dated February 24, 2009, (i) defendant JP Morgan Chase Bank, N.A. was substituted for defendant Washington Mutual Bank (“WaMu”) based on Chase’s Case 2:07-cv-04995-DRH-ARL Document 41 Filed 01/26/10 Page 2 of 19 PageID #: <pageID> Electronic Fund Transfer Act (“EFTA”), 15 U.S.C. §§ 1693 et seq., and its implementing regulations, 12 C.F.R. § 205 et seq. Defendant has moved to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). For the reasons that follow, Defendant’s motion is granted and Plaintiffs’ claims are dismissed. BACKGROUND I. The Complaint The background of this case is set forth in the Court’s prior Memorandum and Order, dated December 3, 2008, familiarity with which is assumed. Azose v. Washington Mutual Bank, 588 F. Supp.2d 366 (E.D.N.Y. 2008). The following facts are taken from the Amended Complaint and are presumed true for purposes of this motion. Plaintiffs were banking customers of Washington Mutual with checking and savings accounts at the bank (“Washington Mutual accounts”). (Am. Compl. ¶ 8.) On three separate occasions, June 15, 2007, June 18, 2007, and July 17, 20072, Plaintiffs used an automated teller machine (“ATM”) at a Chase location in Lawrence, New York to conduct balance inquiries on their Washington Mutual accounts. (Id. ¶¶ 9, 16-21.) Washington Mutual charged an “ATM Balance Inquiry Fee” to Plaintiffs for each transaction. (Id.) On or about July acquisition of certain assets and liabilities of WaMu from the Federal Deposit Insurance Corporation (“FDIC”) acting in its role as receiver for WaMu following WaMu’s closure by the Office of Thrift Supervision; and (ii) defendant JPMorgan Chase & Co., a holding company with no involvement in the matters at issue in this action was dismissed. (Order, dated February 24, 2009.) 2The Amended Complaint states two different dates for the third transaction, to wit, July 17, 2007 and July 18, 2007. (Compare Am. Compl. ¶¶ 9, 28, 31; Ex. B with ¶¶ 21, 44.) The monthly banking statement attached to the Complaint sets forth a July 17, 2007 transaction date and therefore for purposes of this motion the Court will use the July 17, 2007 date. -2- Case 2:07-cv-04995-DRH-ARL Document 41 Filed 01/26/10 Page 3 of 19 PageID #: <pageID> 2007, Washington Mutual issued a monthly banking statement to Plaintiffs indicating that Washington Mutual had charged Plaintiffs a $2.00 ATM Balance Inquiry Fee for the June 15, 2007 ATM transaction, a $4.00 ATM Balance Inquiry Fee for the June 18, 2007 ATM transaction, and a $4.00 ATM Balance Inquiry Fee for the July 17, 2007 ATM transaction. (Id. ¶¶ 22-25.) At the time of each balance inquiry, the Chase ATM did not (i) provide notice to Plaintiffs that Washington Mutual would impose a fee for the transaction; (ii) disclose the amount of the fee Plaintiffs would be charged; and (iii) advise Plaintiffs that they could elect to discontinue the transaction based upon any fees. (Id. ¶¶ 10, 26-29.) According to the Amended Complaint, Washington Mutual and Chase participated in a “shared network” arrangement wherein Washington Mutual, the card-issuing bank, paid Chase, the ATM operator, a fee for transactions made by Washington Mutual customers when they used a Chase ATM. (Id. ¶¶ 36-41.) Pursuant to this banking network arrangement, Chase imposed a fee on Washington Mutual when Plaintiffs used the Chase ATM on the three occasions in June and July 2007. (Id. ¶¶ 42-44.) In turn, Washington Mutual charged Plaintiffs a fee for using the Chase ATM which consisted of the fee charged to Washington Mutual by Chase, plus a “markup.”3 (Id. ¶ 45.) II. Procedural Background Plaintiffs commenced this action in New York State Supreme Court, Queens County, on October 31, 2007 alleging principally that Defendants violated the EFTA and 12 C.F.R. § 205.16 of Regulation E, 12 C.F.R. §§ 205.1-205.18 (“Regulation E”) by their failure to 3Plaintiffs assert in the Amended Complaint that while Washington Mutual “collects the fee from the customer calling it a ‘foreign fee,’ some or all of this fee actually represents the fee that was paid, or to be paid by [Washington Mutual], to Chase for [P]laintiffs’ use of the Chase ATM.” (Id.) -3- Case 2:07-cv-04995-DRH-ARL Document 41 Filed 01/26/10 Page 4 of 19 PageID #: <pageID> comport with the Act’s notice and fee requirements. Defendant Washington Mutual removed this matter to this Court on November 30, 2007 pursuant to 28 U.S.C. § 1441(b). In their Complaint, Plaintiffs asserted four state law claims4 and a cause of action under the EFTA and 12 C.F.R. § 205.16 of Regulation E against defendants Chase and Washington Mutual alleging that defendants had assessed fees against them for conducting balance inquiry transactions at the Chase ATMs and that the ATMs did not provide notice that a fee would be charged for such bank inquiries nor did the ATM advise Plaintiffs that they could discontinue the transaction before incurring the fee. Chase and Washington Mutual each moved to dismiss the initial Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted under the EFTA. Both motions were granted. In so doing, the Court held that (i) as the ATM operator, Chase had no obligation under the EFTA and Regulation E to provide notice to customers of an account-holding bank that their account-holding bank would assess a fee on their accounts for each balance inquiry made at a Chase ATM; (ii) as the account- holding bank, Washington Mutual did not have any obligation under the EFTA and Regulation E to provide notice to its customers at non-Washington Mutual ATMs regarding the assessment of a balance inquiry fee it might impose at those ATMs; and (iii) to the extent that interbank fees were subsequently imposed on Plaintiffs pursuant to an agency or contractual arrangement between defendants thereby possibly triggering disclosure obligations under the EFTA and/or Regulation E, Plaintiffs were granted leave to amend the Complaint. On December 22, 2008, Plaintiffs filed an Amended Complaint on behalf of themselves and all others similarly situated asserting claims against Chase, in its own capacity as 4Plaintiffs withdrew the four state law claims, and the claims were dismissed from the Complaint. -4- Case 2:07-cv-04995-DRH-ARL Document 41 Filed 01/26/10 Page 5 of 19 PageID #: <pageID> the ATM operator, and against Chase, as successor-in-interest to Washington Mutual as the account-holding bank. The Amended Complaint alleges principally that Chase and Washington Mutual participated in a shared network arrangement under which Washington Mutual paid a fee to Chase when a Washington Mutual customer used a Chase ATM for transactions, which in turn Washington Mutual collected from its customer. By virtue of this network, “Chase received a portion of the fee charged to the individual[] using the Chase ATM to conduct [Washington Mutual] business,” thus giving rise to disclosure obligations under the EFTA and Regulation E which Chase failed to satisfy. Chase now moves by the instant motion in its own capacity and as successor-in- interest to Washington Mutual5 to dismiss the Amended Complaint pursuant to Rule 12(b)(6) for failure to state a claim on which relief can be granted. DISCUSSION I. Motion to Dismiss: Legal Standards Rule 8(a) provides that a pleading shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme Court has recently clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6). First, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the 5Plaintiffs withdraw their cause of action against Chase in its capacity as successor-in- interest to Washington Mutual. (Pls.’ Opp’n Mem. at 4 n.1.) Accordingly, Plaintiffs’ claims against Chase as successor-in-interest to Washington Mutual are hereby dismissed. -5- Case 2:07-cv-04995-DRH-ARL Document 41 Filed 01/26/10 Page 6 of 19 PageID #: <pageID> plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 550 U.S.
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