JHONG v. AMERICAN EXPRESS et al
Filing
10
OPINION. Signed by Judge Dennis M. Cavanaugh on 10/23/2013. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOhN THONG.,
:
Plaintiff,
v.
Hon. Dennis M. Cavanaugh
:
OPINION
:
Civil Action No. 2:13-cv-02179 (DMC)(JBC)
AMERICAN EXPRESS.
Defendant.
DENNIS M. CAVi-\NAUGH, LT.S.D.J,:
This matter comes before the Court
upon
the Motion of American Express (“Defendant”)
to Dismiss the Complaint of John Jhong (“Plaintiff’). pursuant to FED. R. Civ. P. 1 2(b)(6).
Pursuant to FED. R. Civ. P 78, no oral argument was heard. Based on the following and for the
reasons expressed herein, Defendant’s Motion is granted.
L
BACKGROUND’
Plaintiff alleges that this action involves an American Express Blue Card (the “Blue
Card”) that was activated in May or June 2011. Plaintiff states that he was the “manager on the
account” but that his wife, Anne Jhong (“Mrs. Jhong”), was the main account holder, Plaintiff
claims that in June or July 201 1, he called Defendant to close the account for the Blue Card but
was told that he could not do so because the account could only be closed by the account holder.
The facts from this section are taken from the parties’ pleadings.
Plaintiff states that in July or August 2011, he and Mrs. Jhong called Defendant to close the
account and that the closure was confirmed by Defendant’s customer service department.
Plaintiff also alleges that in June 201 1, he obtained a separate card from Defendant (the
“Plum Card”). Plaintiff states that later that month, the Plum Card was denied when he attempted
to use it. Plaintiff claims that he spoke to a customer service representative who told Plaintiff that
the Plum Card was denied because of a past due amount of $20.00 on the Blue Card for a
rewards program/account linking fee. Plaintiff claims that he was shocked by this because he
thought that the account for the Blue Card had been closed. Plaintiff claims that the customer
service representative advised him that she would credit the account for the Blue Card for the
fees assessed and that she would be able to close the account within a few days.
According to Plaintiff, on or about October 15, 2011. he noticed that the account for the
Blue Card was not closed. Plaintiff claims that Mrs. Jhong then sent a letter to Defendant
demanding that the account be closed. Plaintiff claims that Defendant did not close the account
and that he later received a collection letter from Defendant. Plaintiff claims that he then spoke
to a customer service representative who advised him that the account ‘had already been sent to
an outside collection company” and that nothing could be done because Defendant “no longer
had access to the file.”
Plaintiff asserts that Defendant improperly reported negative crediting inihrmation about
Mrs. Jhong to credit reporting agencies. Plaintiff claims that as a result of the $20.00
reward/account linking fee, approximately $100.00 in late fees, and the improper reporting of
negative information about Mrs. Jhong, he has sustained over one billion dollars in damages.
Plaintiff filed a fifteen count Complaint in the Superior Court of New Jersey on February 20,
2013 (ECF No. 1, Ex. I). Defendant filed a Notice of Removal on April 5,2013 (ECF No. I).
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Defendant then filed the instant Motion to Dismiss on April 12, 2013 (ECF No. 3). PlaintilY filed
an Opposition on May 20, 2013 (ECF No. 8). Defendant filed a Reply on May 28, 2013 (ECF
No. 7).
IL
STANDARD OF REVIEW
In deciding a motion under FED. R. Civ. P. i 2(b)(6). the District Court is “required to accept
as true all factual allegations in the complaint and draw all inferences in the facts alleged in the
light most favorable to the [plaintiffi.” Phillips v. Cnty, of Aflegheny, 515 F.3d 224, 228 (3d Cir.
2008). “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the plaintHis
“obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and
conclusions and a formulaic recitation of the elements of a cause of action will not do.” Id. On a
motion to dismiss, courts are “not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain. 478 U.S. 265, 286 (1986). Plaintiffs complaint is subject to the
heightened pleading standard set forth in Ashcroft v. Igbal:
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to “state a claim to relief that is plausible on its face.” 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
Determining whether
a complaint states a plausible claim for relief will. be a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense. But where the
well pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged but it has not ‘show[n]” “that the pleader is
entitled to relief.”
.
.
.
.
.
-
-
556 U.S. 662. 678-679 (2009) (quoting Twombly, 550 U.S. at 557, 750).
ilL
DISCUSSION
Defendant asserts that Plaintiffs Complaint must be dismissed because. /nter
Plaintiff lacks standing Bccause standing is a “thiesholdjunsdictional
issue
it
a/ia.
is appiopiiatc to
address it first, before turning to the merits of Plaintiffs claims. See In re RCN Litig., No. 045068, 2006 WL 753149. *3 n.3 (D.N.J. Mar. 21, 2006). The elements of Constitutional standing
are “(1) the plaintiff must have suffered an injury in fact: (2) there must be a causal nexus
between that injury and the conduct complained of: and (3) it must be likely that the injury will
be redressed by a favorable judicial decision.” Joint Stock Socy v. UDV N. Am.. Inc.. 266 F.3d
164, 175 (3d Cir. 2001). An “injury in fact” is defined as “an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or
hypothetical.” Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006).
l)efendant argues that Plaintiff lacks standing because Mrs. Jhong, rather than PIaintif1
was the account holder of the Blue Card. Further. the Complaint alleges that Defendant reported
negative information to credit reporting agencies about
Mrs.
.Jhong. not about Plaintiff. Thus.
Defendant argues that Plaintiff has not shown that he has suffered an injury to a legally protected
interest. In response, Plaintiff claims that due to an assignment executed by Mrs. Jhong on
January 19, 2013, he is the owner of all accounts with Defendant and therefore has standing.
Plaintiff has attached a copy of this assignment as an exhibit to his Opposition. This purported
assignment by Mrs. Jhong to Plaintiff is insufficient to confer standing on Plaintiff as it was not
referenced in Plaintiffs Complaint nor in any exhibit to Plaintiffs Complaint. See cjigzrn
czv.
Am. Airlines, No. 2010/90, 2011 WL 3652334, at *2 (D.V.1, Aug. 18, 2011) (quoting Inre
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997)) (“On a motion
dismiss
.
.
.
to
the Court may not consider documents attached to Plaintiffs opposition. unless they
are ‘integral or explicitly relied upon in the complaint.”); Daniels v. Morris Cntv. Corr. Facility.
No. 06-2460. 2007 WL 174176, at *1 (D.N.J. Jan. 22. 2007) (“In evaluating a Rule i2(b)(6)
motion
to dismiss, a court may consider only the Complaint, exhibits attached to the Complaint.
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matters of public record, and undisputedlv authentic documents if the plaintiffs claims are based
upon those documents.”): Stapperfenne v. Nova Healthcare Administrators. Inc.. No. 05-4883.
2006 WL 1044456, at *3 (D,NJ. Apr. 17, 2006) (refusing to consider exhibits attached to the
plaintiffs opposition when they were not directly incorporated in or attached to the complaint).
Further, even if Plaintiff did have standing. his claims would nonetheless fail. Count five
of the Complaint. Plaintiffs sole federal claim, arises under the Federal Credit Reporting Act
(‘FCRA”). Although Plaintiff does not specify which section of the FCRA he seeks relief under.
this count revolves around the alleged reporting of negative information to credit reporting
agencies by Defendant. Therefore, Plaintiff has essentially classified Defendant as a ‘furnisher of
credit information,” and
168 ls-2 of the FCRA applies. See Forte v. World Fin. Network l3ank,
§
No. 12-704, 2012 WE 3239696, at *3 (D.N.J. Aug. 7. 2012). Plaintiff does not dispute that this
provision is applicable in his Opposition. Thus, Plaintiffs state law claims must be dismissed, as
this District has held that
§
1681 (t)(b)(l )(F) of the FCRA preempts all state law claims against
furnishers of credit information. See Edwards v. Equable
FNçL,j
C. No. 11 -CV-263 8.
2012 WL 1340123, at *7 (D.N.J. Apr. 16, 2012). Further, Plaintiffs FCRA claim must be
dismissed because a private cause of action under
§
168 ls-2 only exists if’(l) [the plaintiffj sent
notice of disputed information to a consumer reporting agency, (2) the consumer reporting
agency then notified the defendant furnisher of the dispute, and (3) the furnisher failed to
investigate and modify the inaccurate information.” Tutanji v. Bank of Am., No. 12-887. 2012
WL 1964507, at *5 (D.N.J. May 31, 2012) (citation omitted). Plaintiff has failed to plead any of
these three elements, Accordingly, Plaintiffs FCRA claim must be dismissed.
IV.
CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss is granted. An appropriate
order follows this Opinion.
Cavanaugh, U.S
I)ate:
Original:
cc:
October
2013
Clerks Office
Hon. James B. Clark U.S.M.J.
All Counsel of Record
File
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