United States District Court, D. Nevada
J. KOPPE United States Magistrate Judge.
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.
In Forma Pauperis Application
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
Screening the Complaint
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).
12(b)(6) 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
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. 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.
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).
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).
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.
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 ...