El-Hallani et al v. Huntington National Bank

Filing 21

OPINION and ORDER granting Defendant's 14 Motion to Dismiss. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALI EL-HALLANI, et al,
Plaintiffs,
No. 13-cv-12983
Hon. Gerald E. Rosen

vs.
HUNTINGTON NATIONAL BANK,
Defendant.
___________________________________/

OPINION AND ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS
I. INTRODUCTION
On October 14, 2013, Plaintiffs Ali El-Hallani and Mark Manuaeel filed
their three-count Amended Class Action Complaint (Amended Complaint) against
Defendant Huntington National Bank.1 Plaintiffs generally allege that Defendant
closed their respective bank accounts due to their race, ethnicity, and/or religious
affiliation in violation of 42 U.S.C. §§ 1981, 1982, and Michigan’s Elliott-Larsen
Civil Rights Act, M.C.L. § 37.2201 et seq. They bring this purported class action
on behalf of Defendant’s past, present, and future customers. Defendant has now

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Plaintiffs initiated this action on July 11, 2013. (Plfs’ Compl., Dkt. #1). In
response to Defendant’s Motion to Dismiss (Def’s Mtn., Dkt. #5), Plaintiffs
amended their Complaint as a matter of course pursuant to Federal Rule of Civil
Procedure 15(a)(1).
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moved to dismiss Plaintiffs’ Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). Having reviewed and considered Defendant’s Motion and
supporting brief, Plaintiffs’ response thereto, and the entire record of this matter,
the Court has determined that the relevant allegations, facts, and legal arguments
are adequately presented in these written submissions, and that oral argument
would not aid the decisional process. Therefore, the Court will decide this matter
“on the briefs.” See Eastern District of Michigan Local Rule 7.1(f)(2). The
Court’s Opinion and Order is set forth below.
II. PERTINENT FACTS
A.

Plaintiffs’ Amended Complaint
Plaintiffs describe themselves as either “Arab American,” “of Middle

Eastern origin,” and/or “Muslim,” or individuals who are perceived by others -including Defendant -- as such. (Plfs’ Am. Compl., Dkt. # 12, at ¶¶ 18-21, 29, 3839, 52-53, 69-70). They formerly banked with Defendant until March 2013, when
Defendant “unilaterally closed” their accounts “without providing . . . any reason
for doing so.” (Id. at ¶¶ 17, 24-27). Plaintiffs did not engage in any “illegal
activity involving their accounts” with Defendant. (Id. at ¶ 28). According to
Plaintiffs, Defendant subjects its Arab, Middle Eastern, and/or Muslim customers
(or those perceived as such) to a “greater scrutiny than non-Arab, non-Muslim and
non-Middle Eastern customers” because they “must overcome a suspicion that they

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are attempting to aid in terrorist activity or are conducting fraudulent activity.” (Id.
at ¶¶ 33, 43, 57, 74). Closing Plaintiffs’ accounts “demonstrate[s]” this greater
scrutiny. (Id.).
On Plaintiffs’ “information and belief,” Defendant’s headquarters sends
individual bank branches a list of business names once a quarter of accounts to be
closed. (Id. at ¶¶ 30-31, 40-41, 54-55, 71-72). Defendant bases these lists on their
customers’ race, ethnicity, and/or religious affiliation. (Id.). This practice has
“resulted in hundreds of business and individual accounts being closed in a short
period of time,” and disproportionately affects Arabs, Middle Easterners and/or
Muslims. (Id. at ¶¶ 31, 32, 41, 42, 55, 56, 72, 73). Though Plaintiffs generally
allege that “non-Arab[], non-Muslim and non-Middle Eastern customers who have
account histories similar to Plaintiffs [did] not have their accounts closed,” (Id. at
¶¶ 35, 45, 59, 76), they do not identify any such similarly situated individuals
whom Defendant treated differently. Rather, they bolster this allegation with the
assertion that “[s]ince the filing of this lawsuit and receiving local press,” only
Arab, Middle Eastern, and/or Muslim former customers “have come forward with .
. . similar complaint[s].” (Id. at ¶¶ 35, 45, 59, 76).
In sum, Plaintiffs “believe” that Defendant closed their bank accounts
“because Plaintiffs are Arab, Muslim, and Middle Eastern, or perceived as Arab,
Muslim, or Middle Eastern.” (Id. at ¶¶ 34, 44, 58, 75; see also id. at ¶¶ 46, 60, 77-

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79). Plaintiffs also claim that Defendant “failed to conduct its business in a fair
and equal manner which prejudiced the Plaintiffs” and “deviated from business
norms in such a manner to support an inference of discrimination.” (Id. at ¶¶ 48,
64, 78-79).
B.

Materials Attached to Plaintiffs’ Response
In Response to Defendant’s Motion to Dismiss, Plaintiffs attached three

affidavits that are outside their Amended Complaint. Though a Rule 12(b)(6)
motion focuses primarily on the allegations contained in the complaint, Amini v.
Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001), the Sixth Circuit has taken a
“liberal view” of what materials are considered part of the pleadings for purposes
of evaluating such motions. Armengau v. Cline, 7 F. App’x. 336, 344 (6th Cir.
2001). When affidavits do “nothing more than verify the complaint, and when
they add[] nothing new, but, in effect, reiterate[] the contents of the complaint
itself, they are not truly materials . . . outside the pleadings.” Yeary v. Goodwill
Indus.–Knoxville, Inc., 107 F.3d 443, 445 (6th Cir.1997) (quoting Song v. City of
Elyria, 985 F.2d 840, 842 (6th Cir.1993) (alterations in the original and internal
quotations omitted). Stated differently, affidavits that “simply fill[] in the contours
and details of the plaintiff’s complaint,” may be considered by the court without
converting a Rule 12(b)(6) motion to one for summary judgment. Id. Upon
review of these affidavits, the Court will consider them without converting

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Defendant’s Motion to one for summary judgment because the affidavits just fill in
more details without providing anything truly new.
The first affidavit, that of Samia Sareini, provides details concerning
complaints the Arab American Civil Rights League (ACRL) has received
regarding “account closures from several local banks, including Huntington
National Bank.” (Ex. B to Plfs’ Resp., Dkt. # 17-3, at ¶ 6). Sareini is ACRL’s
Field Director and attests to the following pertinent facts:
• “On March 19, 2013, amid many complaints from the Arab
community, the ACRL held a press conference and set up a hotline
for individuals to call to complain about the closing of their bank
accounts;”
• “The hotline was open to the public, regardless of race, national
origin or religion;”
• “The ACRL received hundreds of phone calls and still receives
calls on a weekly basis. These individuals complained of account
closures from several local banks, including Huntington National
Bank;”
• “The individuals that I spoke with were Arab and/or have a Middle
Eastern background;”
• “Currently, the ACRL has identified 25 individuals who had held
accounts with Huntington National Bank alone that are Arab,
Middle Eastern and/or Muslim. All 25 individuals had their
Huntington accounts closed;” and
• “I have not received any calls from people outside of the Arab
American and Middle Eastern community.”
(Id. at ¶¶ 3-6, 8-10).
The second affidavit, by Hussein Dabaja, provides information relative to
his experience as a former employee at Defendant’s Oakman branch in Dearborn,

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Michigan. (Ex. C to Plfs’ Resp., Dkt. # 17-4). Dabaja worked as a personal
banking representative from 2003 to 2009 and provides the following pertinent
facts:
• “The Oakman branch was a very profitable branch, largely due to
Middle Eastern businesses in that area;”
• “I left employment in 2009. I felt too much pressure from senior
management and felt that the bank was discriminating against Arab
and Chaldean business owners;”
• “The problem began in early 2008. The bank began closing many
accounts belonging to Arab Americans;”
• “Headquarters sent a list via email with initially approximately 30
business names [of] Arab and Chaldean accounts in early 2008.
They continued sending these lists every quarter (three months),
varying in number, with the names of Arab and Chaldean
businesses;”
• “It was obvious that these accounts were associated with Arab and
Chaldean businesses, given the names on the accounts;”
• “When the bank closes the business account, in almost every
occasion the bank would also close the accounts of the family
members associated with that account;”
• “I personally witnessed over 200 business accounts that were
closed in the short period of 2008 to September 2009 when I left
employment at the bank;”
• “At times, local managers would try to convince headquarters that
certain accounts should not be closed. The local managers had
good relationships with their customers;”
• “Headquarters, together with the Anti-Money Laundering
Department of the Bank, made the decision of who to put on these
lists, and these people were Middle Eastern, given the names
associated with the accounts;”
• “Given the nature of many of the Arab American business owners,
particularly those who own and operate gas stations and check
cashing companies, some of these business owners dealt with large
sums of cash. However, after several deposits over the course of a
long period of time, such deposits if they were previously

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considered suspicious, should no longer (sic) considered
suspicious;”
• “Huntington, I believe based on my personal experience and
knowledge within the bank, is responsible for notifying other
financial institutions that they had closed accounts with its
customers. Those other financial institutions subsequently closed
accounts already held with Huntington customers, or in some
cases, closed newly opened accounts when prior customers sought
their banking needs elsewhere;” and
• “The branch had many non-Middle Eastern bank account holders
that were similar in many respects, only differing by Arab, Middle
Eastern or Muslim characteristics, which were not closed during
this period.”
(Id. at ¶¶ 3-15).
The final affidavit is that of co-Plaintiff Mark Manuaeel. (Ex. D to Plfs’
Resp., Dkt. # 17-5). He provides the following additional pertinent facts:
• “I received a notification letter [from Defendant stating that] . . . it
would close my account on March 4, 2013;”
• “The letter stated that Huntington reserves the right to close its
account at any time;”
• “Right after I opened the letter . . . , I went to the Huntington bank
branch located at 37600 West 12 mile road (sic), Farmington Hills,
Michigan to close my account;”
• “When I spoke with the banker at the branch, she asked me why I
was closing my account. I showed her the letter and she seemed
surprised. She said that it was strange that the letter had not been
signed and offered to call someone to figure out what was going
on. When she returned, she told me that they had no information
about the regulations on the account and that I could call a number
that was given to her during the phone conversation;”
• “I asked the banker to close my account and she gave me a
cashier’s check;”
• “However, that number was the same number that was given on
the notification letter itself;”

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• “I called the number later on that day and no one answered my
call. The recording instructed that I leave a message. I never
received any explanation for why my account with Huntington was
closed;”
• “I have never been convicted of any crime involving fraud or
dishonesty;” and
• “I have never used the above account for any illegal purpose, nor
have I transferred money from the account overseas.”
(Id. at ¶¶ 5-13).
C.

Plaintiffs’ Claims
Plaintiffs assert three causes of action. Counts I and II allege violations of

42 U.S.C. §§ 1981 and 1982, respectively. Plaintiffs’ Count III alleges a violation
of Michigan’s Elliott-Larsen Civil Rights Act (ELCRA), M.C.L. § 37.2201. In
lieu of filing an answer, Defendant moved to dismiss Plaintiffs’ Amended
Complaint.

(Def’s Mtn., Dkt. # 14).

Defendant maintains that Plaintiffs’

Amended Complaint falls short of Rule 8(a)’s pleading requirements in the
aftermath of Twombly and Iqbal. As set forth in more detail below, the Court
agrees and therefore GRANTS Defendant’s Motion to Dismiss.
III. DISCUSSION
A.

Standard of Review
In deciding a motion brought under Rule 12(b)(6), the Court must construe

the complaint in the light most favorable to Plaintiffs and accept all well-pled
factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500
F.3d 523, 527 (6th Cir. 2007). To withstand a motion to dismiss, however, a
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complaint “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). The factual allegations in the complaint, accepted as true,
“must be enough to raise a right to relief above the speculative level,” and must
“state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility of an inference
depends on a host of considerations, including common sense and the strength of
competing explanations for defendant’s conduct.” 16630 Southfield Ltd. P’ship v.
Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013).
The Sixth Circuit has emphasized that the “combined effect of Twombly and
Iqbal [is to] require [a] plaintiff to have a greater knowledge . . . of factual details
in order to draft a ‘plausible complaint.’” New Albany Tractor, Inc. v. Louisville
Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011) (citation omitted). Put another
way, complaints must contain “plausible statements as to when, where, in what or
by whom,” Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 373
(6th Cir. 2011), in order to avoid merely pleading an “unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.

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B.

Plaintiffs’ Amended Complaint Does Not State a Claim for Relief
Plaintiffs’ Counts I and II allege violations of 42 U.S.C. §§ 1981 and 1982.

Originally codified as Section 1 of the Civil Rights Act of 1866, 14 Stat. 27,
Sections 1981 and 1982 prohibit race discrimination with respect to contractual
and property rights. Both statutes require the intent to discriminate; that is, a
plaintiff must allege intentional race discrimination in order to state claims under
Sections 1981 and 1982. Moniz v. Cox, 512 F. App’x 495, 500 (6th Cir. 2013)
(collecting cases); see also Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458
U.S. 375, 391 (1982); Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613
(1987). Plaintiffs’ Count III alleges that Defendant violated Michigan’s ElliottLarsen Civil Rights Act, which prohibits the denial of “full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or accommodations of a place
of public accommodation or public service because of religion, race, color,
national origin, age, sex, or marital status.” M.C.L. § 37.2302(a). A plaintiff may
prove such a claim by presenting either direct or circumstantial evidence. Hazel v.
Ford Motor Co., 464 Mich. 456, 462 (2001).
The question presented by Defendant’s Motion -- whether Plaintiffs have put
forth sufficient facts to support an inference of discrimination -- does not merit
separate review of Plaintiffs’ claims. Jackson v. Quanex Corp., 191 F.3d 647, 658
(6th Cir. 1999) (“We review claims of alleged race discrimination brought under §

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1981 and the Elliott–Larsen Act under the same standards as claims of race
discrimination brought under Title VII of the Civil Rights Act of 1964.”);
Aboubaker v. Cnty. of Washtenaw, 2013 WL 5313197, at *7 (E.D. Mich. Sept. 20,
2013) (Hood, J.) (“Courts have held that the . . . standards in analyzing
discrimination claims under 42 U.S.C. § 1981, Title VII and ELCRA are the
same.”); Reeves v. Rose, 108 F. Supp. 2d 720, 725 (E.D. Mich. 2000) (Cohn, J.)
(noting the same standards of proof under the Fair Housing Act, Sections 1981 and
1982, and ELCRA); see also Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir.
1996) (“Because of their common origin and purpose, § 1981 and § 1982 are
generally construed in tandem.”).2

As set forth below, the Court finds that

Plaintiffs have not alleged sufficient facts under Twombly/Iqbal’s “plausibility”
standard.

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Plaintiffs and Defendant both cite cases concerning establishing a prima facie
case of discrimination under ELCRA. Both the Supreme Court and the Sixth
Circuit have made clear that a complaint need not satisfy this test and rather must
only satisfy Twombly/Iqbal’s plausibility standard. Keys v. Humana, Inc., 684
F.3d 605, 609 (6th Cir. 2012) (requiring that a “complaint establish a prima facie
case . . . is contrary to Supreme Court and Sixth Circuit precedent”). Stated again,
Plaintiffs’ only burden at this stage is to allege facts that plausibly support an
inference of discrimination -- to set forth “sufficient ‘factual content’ from which
[this] court . . . could ‘draw the reasonable inference’” that Defendant closed
Plaintiffs’ bank accounts due to their race. Id. at 610 (citation omitted). This
“plausibility” threshold “occupies that wide space between ‘possibility’ and
‘probability.’ If a reasonable court can draw the necessary inference from the
factual material stated in the complaint, the plausibility standard has been
satisfied.” Id.
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1.

Plaintiffs’ Claims of Religious Discrimination

Though Defendant did not address the issue, the Court first finds that to the
extent Plaintiffs seek relief on the basis of their religious affiliation, such claims
are without merit. “There is a distinction between being discriminated against on
the basis of practicing a religion and being discriminated on the basis of being part
of a racial group associated with a religion.” Abdulsalaam v. Franklin Cnty. Bd. of
Comm’rs, 637 F. Supp. 2d 561, 576 (S.D. Ohio 2009). Of Plaintiffs’ causes of
action, only ELCRA contains a prohibition against religious discrimination. See
M.C.L. § 37.2302(a). It is well-established that Sections 1981 and 1982 do not
proscribe religious discrimination. See, e.g., Saint Francis Coll., 481 U.S. 604 at
613; Jones v. Mayer Co., 392 U.S. 409, 413 (1968). Here, Plaintiffs have not
advanced any facts sufficient for this Court to discern that Defendant intentionally
treated them differently “on the basis of being part of a racial group associated
with a religion” that are independent from their claim of discrimination on account
of their status as “Arab” and/or “Middle Eastern.” Accordingly, Plaintiffs have
failed to state claims for discrimination under Section 1981, Section 1982, and
ELCRA on account of being (or perceived as being) Muslim.
2.

Plaintiffs’ Claims of Race Discrimination

As to Plaintiffs’ claims that Defendant discriminated against them on the
basis of being (or perceived as being) “Arab” and/or “Middle Eastern,” all they

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have done is to infer a “mere possibility of misconduct” on behalf of Defendant.
Iqbal, 556 U.S. at 679. This, however, is not enough to “show” that they have
stated a claim for relief. Id. Instead, Plaintiffs must put forth sufficient “factual
content” to allow this Court to draw the reasonable inference -- based upon judicial
experience and common sense -- that Defendant plausibly discriminated against
Plaintiffs with respect to their race. Keys, 684 F.3d at 610 (citing Iqbal); 16630
Southfield Ltd. P’ship, 727 F.3d at 504.
The Sixth Circuit’s recent decision in 16630 Southfield Limited Partnership
illustrates this established pleading principle. In that case, the plaintiffs claimed
that Flagstar Bank violated the Equal Credit Opportunity Act, 15 U.S.C. § 1691, et
seq., by discriminating against them on account of their national origin (Iraqi)
when it refused to refinance their loan obligations without explanation. 727 F.3d at
503. In support, the plaintiffs set forth several allegations “upon information and
belief” regarding Flagstar’s more favorable treatment of non-Iraqis:
• “Flagstar has refinanced delinquent borrowers who ‘were
Caucasian’ or ‘not . . . members of minority groups;’”
• “Flagstar has made loans ‘to persons not of Iraqi origin or business
entities not associated with persons of Iraqi origin where the debt
to equity ratio is significantly less than what [Plaintiffs] ha[d]
without the additional collateral proposed;’” and
• “Flagstar has refinanced ‘non-Iraqi’ borrowers ‘where the debt to
equity ratio is significantly less than exists regarding Plaintiffs.’”
Id. at 506. The district court concluded that such allegations were not enough
under Twombly/Iqbal to state a claim for relief and the Sixth Circuit agreed:
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These are precisely the kinds of conclusory allegations that Iqbal and
Twombly condemned and thus told us to ignore when evaluating a
complaint’s sufficiency. No doubt disparate treatment of similarly
situated people may support an inference of discrimination. But the
plaintiffs have not identified any similarly situated individuals whom
Flagstar treated better. They have merely alleged their “belief” that
such people exist. These “naked assertions devoid of further factual
enhancement” contribute nothing to the sufficiency of the complaint.
Id. (citations omitted and emphasis added).
In addition to 16630 Southfield Limited Partnership, other courts have
dismissed similarly deficient complaints generically alleging that a bank closed an
account on the basis of race. In Mekuria v. Bank of America, for example, the
plaintiff alleged that Bank of America closed his bank account due to his race in
violation of Section 1981. 883 F. Supp. 2d 10 (D.D.C. 2011). For support, the
Mekuria plaintiff alleged, as pertinent here:
• “Upon information and belief, the summary closing and refusal to
timely release funds entrusted to BOA was the result of unlawful
profiling by BOA because of Mekuria’s national origin, race and
color;” and
• “Because of the facially baseless reasons for reversing the June
deposits, defendant’s sudden closing of all five of his accounts, its
refusal to provide him access to any of his own funds, its failure to
provide Mr. Mekuria with any explanation, coupled with the fact
that Mr. Mekuria had recently been at the bank protesting
defendant’s treatment of him, and its referral to ‘risk
identification,’ Mr. Mekuria was targeted for ‘suspicious activity’
solely because of his race and nationality.”
Id. at 15. Finding that such allegations did not satisfy Twombly/Iqbal, the Mekuria
court summed up the Plaintiff’s allegations as “boil[ing] down to an argument that
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because he was mistreated and because he is black, there must be some connection
between the two.” Id. “Such supposition,” found the court, “is not enough;” the
plaintiff just did not put forth any facts to suggest that Bank of America, or any of
its employees, discriminated against him on the basis of his race. Id. For example,
he did not “allege[] that any of the tellers at the Bank made any negative comments
to him or treated him in a hostile or inappropriate manner while he attempted to
make his deposits or while he challenged the Bank’s decision not to credit the
disputed funds to his account.” Id. He also failed to put forth “any facts to suggest
that white customers of the Bank are treated any differently.” Id.
More recently, Judge Hood of this District examined a Section 1981 race
discrimination claim brought by a “humanitarian and charitable organization . . .
operated and controlled by Arab-Americans of Iraqi descent.” Life for Relief &
Development v. Charter One Bank, N.A., 2013 WL 3810255, at *1 (E.D. Mich.
July 23, 2013) (Hood, J.). In Life for Relief, the plaintiff opened several checking
accounts with Charter One, which Charter One closed several months later. Id.
Other banks followed suit thereafter. Id. A review of the Life for Relief complaint
indicates that it proffered other “facts” similar to those presented in this instant
matter:
• “Charter One did not give any reason for the closure of these
accounts;”

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• “Upon information and belief, if Plaintiff was not operated by
persons of Arabic origin, Defendants would not have engaged in
such conduct;”
• “Upon information and belief, Defendants have treated Plaintiffs
differently because it is operated by Arab-Americans, or persons of
Arabic ethnicity;”
• “Upon information and belief, Defendants have intentionally
discriminated against Plaintiff based on Plaintiff’s Arabic
ethnicity, and their relationship or ties with primarily Arab
countries, where Plaintiff operated by marking them as high risk,
or undesirable, based on their ethnic make up;”
• “Had the officers of Plaintiff not been of Arab ethnicity, upon
information and belief, the bank accounts would still be open;”
• “Had the officers of Plaintiff not been Arab-Americans and
persons of Arab origin, upon information and belief, the bank
accounts would still be open;”
• “Had Plaintiff operated in non-Arab countries, which Defendants
had not ‘redlined,’ upon information and belief, the bank accounts
would still be open;”
• “Upon information and belief, Plaintiff has been treated differently
than similarly situated individuals based on its Arabic identity and
ethnicity;” and
• “Defendants had no legitimate business interest for closing
Plaintiff’s accounts.”
(12-cv-13550, Plfs’ 2d. Am. Compl., Dkt. # 17, at ¶¶ 29, 32, 33, 43, 45-49).
Judge Hood found that such allegations did not plausibly state a claim for
Section 1981 race discrimination, reasoning as follows:
Plaintiff simply alleges that it opened several accounts with Charter
One, that Charter One closed these accounts based on its contractual
right to close the account at any time, and that Plaintiff believes that
this decision was based on race. Charter One’s notice of closure does
not provide any reason for the account closures. Plaintiff asserts
without any factual basis that Charter One closed the accounts on the
basis of race. It does not provide any facts showing why it came to
this conclusion or why the Court could reasonably infer that the
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accounts were closed on the basis of race. Plaintiff does not even
allege that Charter One was aware that Plaintiff was operated and
controlled by those of Arab ethnicity and descent. Based on the facts
alleged in the complaint -- Plaintiff opened an account that Charter
One subsequently closed -- the Court cannot reasonably infer that
Charter One is guilty of the alleged wrongdoing.
Plaintiff alleges that there is a pattern of discrimination because
several other banks have also closed their accounts with Plaintiff.
However, this is a leap that the Court cannot make. Without factual
support, Plaintiff asks that the Court impute the alleged misdeeds of
one bank to Charter One. The complaint does not give sufficient
factual support for the Court to deem that Charter One’s conduct was
inappropriate. Without any factual support, the Court will not hold
Charter One responsible for what may or may not have been a
wrongful conduct on the part of another bank.
Life for Relief, 2013 WL 3810255 at *2. Cf Khudhir v. JP Morgan Chase Bank,
2014 WL 294304, at *4 (E.D. Mich. Jan. 27, 2014) (Drain, J.) (granting summary
judgment on claim that Chase closed the plaintiff’s account on the basis of race)
(citing Life for Relief, supra).
As with the above cited cases, Plaintiffs anchor their claims in their belief
that race motivated Defendant’s decision to close their accounts.

(Plfs’ Am.

Compl., Dkt. # 12, at ¶¶ 30, 31, 34, 40, 41, 44, 54, 55, 58, 71, 72, 75, 77).
Plaintiffs’ mere belief that Defendant discriminated against them, however, is
insufficient to survive a Rule 12(b)(6) motion because a complaint “requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555; 16630 Southfield Ltd. P’ship,
727 F.3d at 506 (“plaintiffs have not identified any similarly situated individuals
17

whom [Defendant] treated better” and just “allege[] their ‘belief’ that such people
exist.”).
After setting aside these “beliefs,” Plaintiffs’ allegations boil down to the
following facts: (1) They banked with Defendant; (2) Defendant’s headquarters
circulated quarterly lists of which accounts to close; (3) “Arab” and/or “Middle
Eastern” accounts were on this list; (4) Defendant closed these accounts without
explanation; (5) Defendant did not close similar accounts for non-Arab and/or nonMiddle Eastern bank account holders; and (6) Only those similar to Plaintiff -totaling at least 25 -- have complained to an Arab American Civil Rights
organization about similar experiences with Defendant and other banks. These
assertions, however, do not plausibly lead to an inference of race discrimination.
Plaintiffs have put forth no facts indicating, for example, that Defendant closed
similarly situated accounts of non-Arabs, that Defendant compiled the closure lists
with the intent of discriminating against Plaintiffs, or that Defendant’s employees
made statements to Plaintiffs reflecting a discriminatory bias towards Arabs.
Stated differently, just because Defendant closed bank accounts of 25 ArabAmericans without providing justification for doing so and even with knowledge
of Plaintiffs’ race does not, without more, lead to an inference of race
discrimination. 16630 Southfield Ltd. P’ship, 727 F.3d at 506; Mekuria, 883 F.
Supp. 2d at 15-16; Life for Relief & Dev., 2013 WL 3810255, at *2.

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Plaintiffs unconvincingly attempt to fill this factual gap by pointing to the
additional details provided in the three attached Affidavits. First, they assert that
the failure of non-Arabs to come forward with similar complaints evidences a
discriminatory inference. It is common sense, however, that a press release, press
conference, and hotline sponsored by an Arab-American Civil Rights organization
would only draw the attention of other Arabs -- much the same way similar
complaint mechanisms set up by other advocacy groups would also likely attract
complaints by those to whom the advocacy group caters and not by those outside
of the purview of that advocacy group.3
Second, Dabaja’s observations as a former employee do not sufficiently span
the factual divide between possibility and plausibility.

Notably, Dabaja last

worked for Defendant in September 2009 -- four years before the facts at issue in
this case. Though he attests that the “closing lists” contained the names of Arab

3

Plaintiffs’ Response suggests that this Court apply the “doctrine of chances”
evidentiary theory, which, according to Plaintiffs “dispels the idea that serial
unusual events can be dismissed as coincidence . . . and raises suspicion calling for
further investigation.” (Plfs’ Resp., Dkt. # 17, at 17-18). As Judge Lawson of this
District has noted, Michigan State Courts use this doctrine “as a means of
validating the introduction of evidence under Michigan Rule of Evidence 404(b).”
State Farm Fire & Cas. Co. v. Allied & Assocs., 860 F. Supp. 2d 432, 441 (E.D.
Mich. 2012) (Lawson, J). Plaintiffs did not cite to any cases applying this doctrine
to Federal Rule of Civil Procedure 8(a)’s pleading requirements and this Court
declines to supplant Twombly/Iqbal’s plausibility standard with one born out of the
law of evidence. Id. at 442 (noting that the doctrine of chances does not excuse a
plaintiff from meeting the pleading requirements set forth in the Federal Rules of
Civil Procedure).
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and Chaldean businesses resulting in the closure of over 200 accounts from 2008
through 2009, Dabaja presented no facts indicating that Defendant did so on
account of race and did so four years later when it closed Plaintiffs’ accounts.
And, as indicated above, Dabaja’s attestation that similarly situated “non-Middle
Eastern bank account holders” did not suffer from similar closures is merely a label
and conclusion under Twombly that just “will not do.” Twombly, 550 U.S. at 555.
Third and finally, this Court declines to infer race discrimination from the
fact that Defendant has not explained why it closed Plaintiffs’ accounts, especially
given Plaintiffs’ claim that it did not make business sense to do so.4 Though the
Sixth Circuit has made clear that “the existence of obvious alternative explanations
simply illustrates the unreasonableness of the inference sought and the
implausibility of the claims made,” 16630 Southfield Ltd. P’ship, 727 F.3d at 505,
it has also rejected the notion that a Defendant must “come forward with an
‘obvious alternative explanation.’” HDC, LLC v. City of Ann Arbor, 675 F.3d 608,
613 (6th Cir. 2012) (“Regardless of whether [Defendant] has come forward with an
‘obvious alternative explanation,’ [plaintiffs] have failed to state facts that
4

Plaintiff cites to an unpublished Western District of Tennessee case from 1980
for the proposition that because Defendant did not offer an explanation for the
account closures, it did not rebut an inference of discrimination. (Plfs’ Resp., Dkt.
# 17, at 20-21) (citing Jefferys v. R.W. Harmon & Sons, 1980 U.S. Dist. LEXIS
12164 (W.D. Tenn. Feb. 14, 1980)). Jefferys is inapposite as it addresses
applicable burdens under the McDonnell Douglas test in the context of a Rule 56
motion. As discussed in footnote 2, the McDonnell Douglas burden-shifting
approach simply does not apply at this procedural juncture.
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plausibly support a claim of discrimination.”) (citation omitted).

Requiring a

defendant to affirmatively produce an “alternative explanation” where, as here, a
complaint merely pleads facts consistent with liability would improperly shift Rule
8(a)’s pleading burden away from a plaintiff’s obligation to set forth facts
sufficient to “nudge[] . . . claims across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570; 16630 Southfield Ltd. P’ship, 727 F.3d at 503 (Rule
8(a) “imposes legal and factual demands on the authors of complaints”).
C.

Plaintiffs May File a Second Amended Complaint
As noted, Plaintiffs’ Amended Complaint fails to meet the pleading

standards established by the Supreme Court. It is this Court’s general practice to
provide a plaintiff with an opportunity to amend a complaint when faced with a
dismissal that is readily curable because slight defects should not condemn an
otherwise viable complaint. Plaintiffs attempted to cure their defects with both the
Amended Complaint and the three attached affidavits in response to Defendant’s
Motion to Dismiss. As set forth above, the additional facts contained within those
documents do not satisfy Twombly/Iqbal’s plausibility standard -- a standard that
simply does not permit this Court to breathe life into claims that are wholly
supported by conclusory allegations and formulaic recitations of the elements.
Nonetheless and out of an abundance of caution, the Court dismisses Plaintiffs’

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Amended Complaint without prejudice and will permit Plaintiffs to file a Second
Amended Complaint.
IV. CONCLUSION
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss Plaintiffs’
First Amended Class Action Complaint Under Rule 12(b)(6) [Dkt. # 14] is
GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Amended Complaint is
dismissed without prejudice.
IT IS FURTHER ORDERED that Plaintiffs may filed a Second Amended
Complaint by no later than twenty-one days after entry of this order; otherwise,
this Court will enter a judgment of dismissal with prejudice.
IT IS SO ORDERED.

Dated:

March 13, 2014

s/Gerald E. Rosen
GERALD E. ROSEN
CHIEF, U.S. DISTRICT COURT

I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, March 13, 2014, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, 313-234-5135

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