COPELAND v. NEWFIELD BANK et al
Filing
9
OPINION. Signed by Judge Noel L. Hillman on 12/29/2017. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
MARCIA COPELAND,
Civil No. 17-17 (NLH/KMW)
Plaintiff,
OPINION
V.
NEWFIELD NATIONAL BANK,
LYNDA GAZZARRA, GAZZARA
REAL ESTATE,
Defendants.
_________________________________________
APPEARANCES:
Marcia Copeland
2 Apple Ridge Way
East Brunswick, N.J. 08816
Pro Se Plaintiff
Thomas M. North, Esquire
53 Newton Avenue
Woodbury, N.J. 08096
Attorney for Defendant Newfield National Bank
HILLMAN, DISTRICT JUDGE
This matter comes before the Court by way of Defendant
Newfield National Bank’s motion [Doc. No. 4] to dismiss
Plaintiff’s Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(5) for insufficient service of process, or, in
the alternative, to quash service of process.
Plaintiff Marcia
Copeland, appearing pro se, opposes Defendant’s motion.
The
Court has considered the parties’ submissions, and decides this
matter pursuant to Federal Rule of Civil Procedure 78.
The Court has determined sua sponte that it lacks subject
matter jurisdiction over this matter, will therefore dismiss
this matter, and deny Defendant’s motion to dismiss as moot.
I.
JURISDICTION
The first section of Plaintiff’s Complaint, entitled
“Federal Jurisdictional Codes”, sets forth two purported bases
for the Court’s exercise of jurisdiction in this matter.
Compl. [Doc. No. 1], 1.)
(Pl.’s
Initially, it appears Plaintiff seeks
to bring claims against Defendants for purported violations of
the Federal Trade Commission Act (hereinafter, “FTCA”) with
respect to a failed real estate transaction that occurred in
2016. 1
Thus, Plaintiff seems to assert that the Court may
exercise jurisdiction over Plaintiff’s federal law claims under
the FTCA pursuant to 28 U.S.C. § 1331.
Additionally, Plaintiff
sets forth a more general, broad-based assertion of
“discrimination” as a basis for jurisdiction. 2
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Specifically, the Complaint states: “1. Federal Trade
Violation and deceptive advertising and real estate practice.
Manipulating sale for [sic] of real estate for reason that must
be explored.” (Pl.’s Compl., 1.) Plaintiff explicitly cites 15
U.S.C. § 54 – a section of the FTCA which outlines the
imposition of penalties for violations which constitute false
advertising.
2
Plaintiff’s assertion of “Discrimination” as a basis for
jurisdiction is simply a one-word description on the first page
of the Complaint and in her prayer for relief. The remainder of
the Complaint is completely devoid of any facts that even
suggest, much less support as plausible, a federal claim for
discrimination of any kind. Accordingly, the Court cannot
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II.
BACKGROUND
From the Court’s review of the Complaint, it appears that
in December of 2016, Plaintiff worked with a relator by the name
of Bob Maz in an attempt to purchase a property located at 116118 Cooper Street, Woodbury, New Jersey.
(Pl.’s Compl., 1-2.)
The property was listed by Defendant Gazzara Realty, and the
listing agent involved in the transaction was Defendant Lynda
Gazzara.
(Id. at 2-3.)
Exhibit 1 to the Complaint demonstrates
that the property which Plaintiff sought to purchase was “bank
owned” by Defendant Newfield Bank.
(Ex. 1 to Pl.’s Compl., 1.)
Plaintiff claims that she made a cash offer to purchase the
property, and despite the pending offer, did not receive a
counter-offer or any substantive response to her offer.
(Pl.’s
Compl., 2-3.)
Plaintiff alleges, in broad terms, that Defendants engaged
in deceptive advertising, failed to disclose information that
the property in question was being pursued by another buyer, and
engaged in deceptive trade practice to deprive Plaintiff from
purchasing the property in question. (Id.)
Plaintiff requests
the following forms of relief from the Court: (1) dismissal of
the second offer made on the property; (2) that the Court
exercise jurisdiction over the Complaint based on a one-word,
generalized claim of discrimination without any supporting
facts. The remainder of this Opinion only addresses the FTCA
claim.
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forward an “official complaint” to the Real Estate Commission;
(3) triple damages based on the price the second buyer paid to
acquire the property; and (4) any other remedies permissible
under the laws against deceptive advertising and discrimination.
(Id. at 3.)
Defendant Newfield Bank subsequently moved to dismiss the
Complaint pursuant to Rule 12(b)(5) on the basis of insufficient
process of service. (Def.’s Mot. to Dismiss [Doc. No. 4].)
In
the alternative, Defendant argues that the Court should quash
service.
III. DISCUSSION
Despite the various arguments presented in the pending
motion to dismiss, Defendants do not challenge the Court’s
exercise of jurisdiction over Plaintiff’s alleged FTCA claims.
However, as the Third Circuit has held, “[f]ederal courts are
courts of limited jurisdiction, and when there is a question as
to our authority to hear a dispute, ‘it is incumbent upon the
courts to resolve such doubts, one way or the other, before
proceeding to a disposition on the merits.’”
Zambelli Fireworks
Mfg. Co. v. Wood, 592 F.3d 412, 418 (3d Cir. 2010) (citing
Carlsberg Res. Corp. v. Cambria Sav. & Loan Ass’n., 554 F.2d
1254, 1256 (3d Cir. 1977)).
Accordingly, federal courts have an
independent obligation to address issues of subject matter
jurisdiction sua sponte and may do so at any stage of the
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litigation.
Adamczewski v. Emerson Elec. Co., No. 10–4862, 2011
WL 1045162, at *1 (D.N.J. Mar. 22, 2011) (citing Meritcare Inc.
v. St. Paul Mercury Ins. Co., 166 F.3d 214, 217 (3d Cir. 1999),
overruled on other grounds by Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 125 S.Ct. 2611, 162 L.Ed.2d 502
(2005)).
Therefore, although the parties have not specifically
raised the issue of the Court's subject matter jurisdiction at
this time, 3 the Court must determine as a threshold matter
whether the exercise of jurisdiction is proper in this case
before ruling on the merits of the pending motion. In re
Caterbone, 640 F.3d 108, 111 (3d Cir. 2011) (noting courts must
“‘determine whether subject-matter jurisdiction exists, even in
the absence of a challenge from any party’”) (citation omitted).
IV.
ANALYSIS
The Court of Appeals for the District of Columbia Circuit
has previously explained that “[t]he role of the courts in the
enforcement of the Federal Trade Commission Act is one that
comes into play primarily only after the Commission has set its
administrative processes in motion.
The court's role is not one
of direct enforcement but one related to the administrative
3
Plaintiff’s opposition to Defendant’s motion repeatedly
asserts – in a cursory manner – that the Court has subject
matter jurisdiction over this matter. Despite Plaintiff’s
assertion, the Court must independently assess the basis for
jurisdiction here and cannot simply accept her representations
that jurisdiction is proper.
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process–in part supervisory and in part collaborative.”
Holloway v. Bristol-Myers Corp., 485 F.2d 986, 1002, (D.C. Cir.
1973).
The D.C. Circuit has concluded that “[a] fair reading of
the statute and its legislative history evinces a plain intent
by Congress to make the administrative program for enforcing the
Federal Trade Commission Act an exclusive one. ... To imply a
private right of action to enforce the Federal Trade Commission
Act–however desirable or logical this might appear in the
abstract–would be contrary to the legislative design which we
discern to have been deliberately wrought.”
Id.
Federal courts across the country have consistently held
that the FTCA does not permit a private cause of action, and
such claims are routinely dismissed.
See, e.g., Gajo v. Chicago
Brand, No. 17-cv-00380, 2017 WL 2473142, at *1 (N.D. Cal., June
8, 2017) (acknowledging that “[c]ourts have held that consumers
and members of the public at large may not maintain a private
action to enforce the FTCA.”) (citing Dreisbach v. Murphy, 658
F.2d 720, 730 (9th Cir. 1981) (stating that “private litigants
may not invoke the jurisdiction of the federal district courts
by alleging that defendants engaged in business practices
proscribed by “15 U.S.C. § 45(a)(1)”; “[t]he Act rests initial
remedial power solely in the Federal Trade Commission”); Aristeo
v. Raines, Civ. No. 15-4115, 2016 WL 430568, at *4 (D.N.J., Feb.
3, 2016) (recognizing that “[n]o private right of action exists
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under 15 U.S.C. § 45(a)(1) or 15 U.S.C. § 52(a)(2))(citing
Phillips v. Deutsche Bank Nat. Trust Co., No. 10-5883, 2010 WL
5246032, at *1 (C.D. Cal. Dec. 16, 2010) (no private right of
action under 15 U.S.C. § 45(a)(1)); and Montgomery v. Kraft
Foods Glob., Inc., No. 1:12–CV–00149, 2012 WL 6084167, at *1 n.2
(W.D. Mich. Dec. 6, 2012) (No private right of action under 15
U.S.C. § 52(a)(2))); Mulder v. Kohl's Department Stores, Inc.,
Civ. No. 15-11377, 2016 WL 393215, at *3 (D. Mass., Feb. 1,
2016) (explaining that “[t]he Federal Trade Commission Act does
not provide for a private cause of action.”) (citing Marini v.
Dragadosusa, No. 11–11316–GAO, 2012 WL 4023674, at *1 (D. Mass.
Sept. 11, 2012) (“[T]he Federal Trade Commission Act ... does
not provide a cause of action by private persons such as the
plaintiff.”); see also Shaulis v. Nordstrom Inc., 120 F. Supp.
3d 40, 46 (D. Mass., 2015) (again noting that “[t]he Federal
Trade Commission Act does not provide for a private cause of
action.”); and Diessner v. Mortg. Elec. Registration Sys., 618
F. Supp. 2d 1184, 1191 (D. Ariz. 2009) (dismissing claims under
the FTCA stating that “there is no private right of action under
the FTCA.”).
Here, a plain reading of the Complaint makes clear that
Plaintiff seeks to bring this action pursuant to the FTCA, but,
as the case law cited above demonstrates, as a private citizen,
Plaintiff cannot maintain a private cause of action for the
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alleged violations of the FTCA she describes in the Complaint.
Accordingly, the Court lacks a basis to exercise subject matter
jurisdiction over the Complaint, and the Complaint must be
dismissed with prejudice as amendment would be futile in this
instance.
In light of the Court’s determination that
jurisdiction is lacking, the pending motion cannot be determined
on the merits and will be denied as moot.
V.
CONCLUSION
For the foregoing reasons, Defendant’s motion [Doc. No. 4]
to dismiss for insufficient service of process will be denied as
moot.
Plaintiff’s Complaint will be dismissed for lack of
subject matter jurisdiction.
An Order consistent with this
Opinion will be entered.
Dated: December 29, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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