SAGET v. WELLS FARGO BANK, N.A.

Filing 24

OPINION. Signed by Judge William J. Martini on 9/10/14. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:13-03544 (WJM)

EMMANUEL SAGET,
Plaintiff,

OPINION
v.
WELLS FARGO BANK, N.A.,
Defendant.

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Emmanuel Saget brings this action against Defendant Wells Fargo Bank,
N.A. alleging tortious interference with prospective economic advantage. This matter
comes before the Court on Defendant’s motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons
set forth below, Defendant’s motion to dismiss is GRANTED.
I.

BACKGROUND

Defendant is a national licensed banking institution with its main office in South
Dakota. Plaintiff worked as a personal banker in Defendant’s Hillside, New Jersey
branch. (Am. Compl. ¶ 5, ECF No. 13.) On April 18, 2012, after almost two years of
employment, Plaintiff was discharged. (Am. Compl. ¶ 8.) Defendant advised Plaintiff
that he was discharged for violating the Wells Fargo Code of Ethics and Business
Conduct. (Am. Compl. ¶ 9.) Plaintiff filed an internal appeal of his termination, which
Defendant denied. (Am. Compl. ¶ 10.) On September 11, 2012, Defendant sent Plaintiff
correspondence confirming the denial of his internal appeal. (Am. Compl. ¶ 11.) The
letter further stated that the reason for his termination would not be disclosed in the event
of a reference check. (Am. Compl. ¶ 11.)
Plaintiff alleges that, prior to sending the September 11, 2012 letter to him,
Defendant filed a report with Early Warning Services, LLC (“EWS”) stating that Plaintiff
had an “unfavorable employment record.” (Am. Compl. ¶ 12.) Plaintiff alleges that
EWS “is a clearing house for all persons employed in the finance industry and is used by
prospective employers in determining whether or not to hire job applicants.” (Am.
Compl. ¶ 13.) Plaintiff maintains that this report has prevented him from obtaining
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employment in the banking and finance industry. (Am. Compl. ¶ 23.) For instance, the
Amended Complaint alleges that, on August 3, 2012, Bank of America advised Plaintiff
that he would not be offered employment due to a report that it received from EWS.
(Am. Compl. ¶ 14.)
On April 26, 2013, Plaintiff filed a Complaint against Defendant in the Superior
Court of New Jersey, Union County. On June 7, 2013, Defendant timely removed the
Complaint to this Court on the basis of diversity jurisdiction. Defendant then filed a
motion to dismiss the Complaint, which the Court granted on April 4, 2014. Plaintiff
subsequently filed an Amended Complaint. Defendant once again moves to dismiss.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted.
The moving party bears the burden of showing that no claim has been stated. Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under
Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in
the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975);
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir.
1998).
Although a complaint need not contain detailed factual allegations, “a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ 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). Thus, the factual allegations
must be sufficient to raise a plaintiff’s right to relief above a speculative level, such that it
is “plausible on its face.” See id. at 570; see also Umland v. PLANCO Fin. Serv., Inc.,
542 F.3d 59, 64 (3d Cir. 2008). 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) (citing
Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a
‘probability requirement’ . . . it asks for more than a sheer possibility.” Id.
III.

DISCUSSION

Plaintiff’s Amended Complaint asserts one count, which the Court construes as a
claim for tortious interference with prospective economic advantage. Defendant moves
to dismiss on two grounds. First, Defendant argues that the Amended Complaint does
not contain sufficient factual allegations showing that Defendant acted with malice.
Second, Defendant argues that the Fair Credit Reporting Act (“FRCA”) preempts the
Plaintiff’s cause of action. The Court agrees.

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To state a claim for tortious interference with prospective economic advantage, a
plaintiff must allege that (1) she had a reasonable expectation of economic advantage, (2)
the Defendant intentionally and maliciously interfered with that right, (3) the interference
caused the loss of the prospective gain, and (4) but for the interference, there was a
reasonable probability that she would have received the anticipated economic benefits.
Printing Mart-Morristown v. Sharp Elec. Corp., 563 A.2d 31, 37 (N.J. 1989). The
second element requires allegations of malice – allegations showing that the Defendant
acted without justification or excuse. Id. (citing Rainier's Dairies v. Raritan Valley
Farms, Inc., 117 A.2d 889, 895 (1955)).
The Amended Complaint does not contain any factual allegations showing that
Defendant acted without justification or excuse when it filed the report with EWS. In
fact, the Complaint fails to provide any details whatsoever regarding the circumstances
surrounding Plaintiff’s dismissal. A negative report regarding an employee’s
performance alone simply is not enough to satisfy the malice element of a tortious
interference with prospective economic advantage claim. See Shuali v. Dunkel, No. A1134-05T3, 2007 WL 188012, at *5 (N.J. Super. Ct. App. Div. Jan. 26, 2007) (“Where . .
. a prospective employer asks a former employer about a past employee's performance
with that former employer, even if the response is negative, that response would not
constitute the element of malice . . . .”). Accordingly, the Court will grant Defendant’s
motion to dismiss.
Moreover, even assuming that Plaintiff had alleged facts showing malice, the
FCRA controls and preempts Plaintiff’s state law claim. Section 1681t(b)(1)(F) of the
FCRA bars all state law causes of action against “persons who furnish information to
consumer reporting agencies.” 15 U.S.C. § 1681t(b)(1)(F) (“No requirement or
prohibition may be imposed under the laws of any State with respect to any subject
matter regulated under Section 1681s-2 of this title, relating to the responsibilities of
persons who furnish information to consumer reporting agencies . . . .”); see also Burrell
v. DFS Services, LLC, 753 F. Supp. 2d 438, 451 (D.N.J. 2010). The FCRA defines a
consumer reporting agency as any person that assembles credit and other information
regarding consumers for the purposes of furnishing consumer reports to third parties. 15
U.S.C. § 1681a(f). And the term consumer report includes any communication bearing
on a person’s general reputation that is used as a factor in establishing the consumer’s
eligibility for employment. 15 U.S.C. § 1681a(d), (h). Courts have construed Section
1681t(b)(1)(F) broadly, finding that it “leaves no room for state law claims against
furnishers of information . . . regardless of whether those claims are couched in terms of
common law or state statutory obligations.” See, e.g., Burrell, 753 F. Supp. 2d at 451.
Here, EWS is a consumer reporting agency that assembles consumer credit
information for persons employed in the finance industry and furnishes those reports to
third parties (e.g. prospective employers). (Am. Compl. ¶ 13.) And Plaintiff’s claim for
tortious interference is based on information Defendant sent to EWS regarding Plaintiff’s
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unfavorable employment record. The FCRA thus preempts Plaintiff’s state law claim
against Defendant, and the Court will dismiss the Amended Complaint with prejudice.
IV.

CONCLUSION

For the reasons stated above, Defendant’s motion to dismiss is GRANTED. The
Amended Complaint is DISMISSED WITH PREJUDICE. An appropriate order
follows.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.

Date: September 10, 2014

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