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Cifaldo v. BNY Mellon Investment Servicing Trust Co.

United States District Court, D. Nevada

May 23, 2017

MICHAEL CIFALDO, Plaintiffs,
v.
BNY MELLON INVESTMENT SERVICING TRUST COMPANY, Defendants.

          ORDER

          NANCY J. KOPPE United States Magistrate Judge.

         Plaintiff Michael Cifaldo, proceeding in this action pro se, has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis, and submitted a complaint on March 21, 2017. Docket Nos. 1, 1-1.

         I. In Forma Pauperis Application

         Plaintiff has submitted the affidavit required by § 1915 showing an inability to prepay fees and costs or give security for them. Accordingly, Plaintiff's request to proceed in forma pauperis will be granted pursuant to 28 U.S.C. § 1915(a). The Court will now review Plaintiff's Complaint.

         II. Screening the Complaint

         Upon granting a request to proceed in forma pauperis, the Court additionally screens the complaint pursuant to § 1915. Federal courts are given the authority to dismiss a case if the action is legally “frivolous or malicious, ” fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When the Court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

         Rule 12(b)(6)[1] of the Federal Rules of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 678. Additionally, where the claims in the complaint have not crossed the line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings is required after Twombly and Iqbal).

         Plaintiff alleges that, on September 2, 2016, two unauthorized charges totaling $755.61 were made to his Fidelity Visa Gold Debit Card while he was asleep. See, e.g., Docket No. 1-1 at 1-2, 16.[2] Plaintiff further alleges that, on the same day, he notified Defendant of the charges via telephone. See Id. at 16. Plaintiff alleges that Defendant “denied [his] claims without explanation on September 7, 2016.” Id. at 2. Plaintiff further alleges that, on September 20, 2016, he sent Defendant a letter requesting all documentation used in its investigation of his claim. Id. at 2, 16-17. Plaintiff alleges that Defendant received the letter on September 23, 2016. Id. Plaintiff alleges that, on October 3, 2016, Defendant sent him a letter stating that its denial of his claim was based on verbal information provided to it by the merchant who charged Plaintiff's account. Id. at 2, 20. Plaintiff further alleges that, on November 17, 2016, Defendant sent him a second letter, again denying his claims, and stating that it had subsequently received documentation from the merchant that was consistent with the verbal information the merchant previously provided it. Id. at 3, 24.

         Plaintiff initiated this action on March 21, 2017. Docket No. 1. Plaintiff alleges violations of the Electronic Funds Transfer Act (“EFTA”), 15 U.S.C. §§ 1693 et seq. Docket No. 1 at 3-5. Specifically, Plaintiff alleges that Defendant violated 15 U.S.C. §§ 1693d(a), 1693f(a), 1693f(c)-(d), 1693g(a)-(b), and 1693g(e). Id.

         “The EFTA creates a ‘framework [of] rights, liabilities, and responsibilities of participants in electronic fund transfer systems.'” Sanford v. Member Works, Inc., 625 F.3d 550, 560 (9th Cir. 2010) (quoting 15 U.S.C. § 1693(b)). “In a basic sense, the EFTA allows consumers to preauthorize electronic transfers of funds from accounts they hold at financial institutions.” Camacho v. JPMorgan Chase Bank, 2015 WL 5262022, at *2 (N.D. Cal. Sept. 9, 2015) (citing 15 U.S.C. § 1693e). “These financial institutions must thereafter provide to consumers documentation evidencing the transfers on a periodic basis.” Camacho, 2015 WL 5262022, at *2 (citing 15 U.S.C. § 1693d).

         “The EFTA contains an error resolution process which obligates consumers to report transfer errors to financial institutions within 60 days after having been transmitted the written documentation containing the error.” Camacho, 2015 WL 5262022, at *2 (citing 15 U.S.C. § 1693f(a)). “For the purposes of this provision, an ‘error' includes either an unauthorized, incorrect or omitted transfer of funds.” Camacho, 2015 WL 5262022, at *2 (citing 15 U.S.C. § 1693f(f)). “Actions against financial institutions for failure to comply with the EFTA must be brought ‘within one year from the date of the occurrence of the violation.'” Camacho, 2015 WL 5262022, at *5 (citing 15 U.S.C. § 1693m(g)). With this framework in mind, the Court addresses in turn each of the statutory provisions under which Plaintiff attempts to state a claim for relief.

         First, Plaintiff alleges that Defendant violated 15 U.S.C. § 1693d(a) by failing to provide him with written documentation pertaining to the transfers as required by 15 U.S.C. § 1693d(a)(1) through (5). Docket No. 1-1 at 3. 15 U.S.C. § 1693d(a) provides that:

For each electronic fund transfer initiated by a consumer from an electronic terminal, the financial institution holding such consumer's account shall, directly or indirectly, at the time the transfer is initiated, make available to the consumer written documentation of such transfer. The documentation shall clearly set forth to the extent applicable -
(1) the amount involved and date the transfer is ...

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