Hasan v. American Express Centurion Bank

Filing 37

ORDER granting 9 Motion to Dismiss; finding as moot 31 Motion for Leave by Judge R. Brooke Jackson on 2/17/17. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 16-cv-02549-RBJ
MALIK M. HASAN, M.D.
Plaintiff,
v.
AMERICAN EXPRESS CENTURION BANK,
Defendant.

ORDER

This case is substantially similar to plaintiff’s recently dismissed suit in Hasan v. Chase
Bank USA, No. 16-cv-01991-RPM (D. Colo. Oct. 12, 2016). Judge Matsch’s opinion in that
matter applies with equal force here.
Dr. Malik M. Hasan has one or more credit cards that were issued to him by American
Express Centurion Bank (AMEX). ECF No. 2 ¶¶ 7–10. From 2009 to 2012 he used his AMEX
card(s) to purchase wine from Premier Cru Fine Wines (Premier Cru), a California merchant. Id.
¶¶ 9–10. Dr. Hasan paid AMEX for all of these charges. Id. ¶ 10.
Premier Cru delivered some of the wine that Dr. Hasan ordered but failed to deliver wine
for which he had paid at least $379,153.72. Id. ¶¶ 10, 13. In January 2016 Premier Cru filed for
bankruptcy. Id. ¶ 12. The trustee has taken the position that none of the wine in Premier Cru’s
possession belongs to Dr. Hasan. Id. Dr. Hasan subsequently demanded reimbursement for

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those credit card charges from AMEX under the Fair Credit Billing Act (FCBA) at 15 U.S.C. §
1661i.
Dr. Hasan filed this civil action to recover that balance in the District Court for the City
and County of Denver, Colorado in September 2016. ECF No. 1, Ex. A. AMEX removed the
action to this Court on October 13, 2016, ECF No. 1, and filed a motion to dismiss under Fed. R.
Civ. P. 12(b)(6) on November 9, 2016, ECF No. 9.
This case must be dismissed. The FCBA subjects credit card issuers to all contract
claims that arise out of their credit card holders’ transactions if certain conditions are met. See
15 U.S.C. § 1661i(a). But as Judge Matsch explained in Hasan v. Chase Bank USA, a card
holder’s right to assert such a cause of action expires once he pays off the corresponding credit
card balance. No. 16-cv-01991-RPM (D. Colo. Oct. 12, 2016), ECF No. 24. The FCBA
expressly limits these claims to “the amount of credit outstanding with respect to such
transaction at the time the cardholder first notifies the card issuer” of the claim. 15 U.S.C. §
1666i(b).
Dr. Hasan admits that he promptly paid AMEX for his wine orders. ECF No. 2 ¶ 10; see
also ECF No. 23 at 9 (attaching a 2012 AMEX statement summary showing full payment of all
charges). Indeed, Dr. Hasan made these payments several years before Premier Cru failed to
deliver his orders. See ECF No. 2 ¶¶ 9–10, 12. Therefore, Dr. Hasan has no FCBA right to sue
AMEX for Premier Cru’s breach of contract. See Moynihan v. Providian Fin. Corp., No. Civ.
JFM-02-2795, 2003 WL 21841719, at *3 (D. Md. July 14, 2003) (granting summary judgment
against plaintiff alleging right to sue under FCBA where plaintiff “did not withhold payment”
from credit card issuer); Beaumont v. Citibank, No. 01 Civ. 3393, 2002 WL 483431, at *7

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(S.D.N.Y. Mar. 28, 2002) (dismissing claim brought under FCBA where plaintiff “has not
alleged that there was any amount of credit outstanding at the time he first notified [defendant
credit card issuers] of his claim or defense, or that any amount remained outstanding when he
filed suit”).
Dr. Hasan’s alternative interpretation of 15 U.S.C. § 1661i is incorrect. He argues that
“the amount of credit outstanding” can refer to a card holder’s extending credit to a merchant for
goods or services that are to be delivered at a future date. It cannot. The text, context, and
purpose of this provision make plain that “credit outstanding” refers only to a credit card issuer’s
extending credit to a credit card holder. See 15 U.S.C. § 1666i(b) (explaining how to apply
“payments and credits to the cardholder’s account” “[f]or the purpose of determining the amount
of credit outstanding in the preceding sentence”) (emphasis added); see also id. § 1601(a) (“The
Congress finds that economic stabilization would be enhanced and the competition among the
various financial institutions and other firms engaged in the extension of consumer credit would
be strengthened by the informed use of credit.”) (emphasis added).
ORDER
For the foregoing reasons,
1. Defendant American Express Centurion Bank’s Motion to Dismiss [ECF No. 9] is
GRANTED. As the prevailing party, defendant is awarded costs pursuant to Fed. R. Civ. P.
54(d)(1) and D.C.COLO.LCivR 54.1.
2. Defendant American Express Centurion Bank’s Motion for Leave to Notify Court
Regarding a Pertinent District of Colorado Opinion [ECF No. 31] is MOOT.
DATED this 17th day of February, 2017.

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BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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