HV ASSOCIATES LLC et al v. THE PNC FINANCIAL SERVICES GROUP, INC.
OPINION AND ORDER granting in part and denying in part PNC Defendant's 26 Motion to Dismiss. Count one of the Amended Complaint, for violations of New Jersey privacy laws with regard to bank records under the Privacy Act, is GRANTED; Count t wo of the Amended Complaint, for common law invasion of privacy, is DENIED without prejudice. The remaining Counts three through seven are GRANTED. Plaintiff is granted leave to further amend the Amended Complaint to cure the pleading deficiencies identified in this Opinion, and specifically to support Count I and Counts III-VII with sufficient factual allegations to plausibly demonstrate an entitlement to relief, etc. Signed by Judge Stanley R. Chesler on 3/8/18. (cm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION
HV ASSOCIATES LLC and HARSHI
PNC BANK, N.A. and ROYAL BANK OF
Civil Action No. 17-8128 (SRC)
OPINION & ORDER
CHESLER, District Judge
This matter comes before the Court upon the filing by Defendant PNC Bank, National
Association (“PNC”) of a motion to dismiss the complaint, pursuant to Federal Rule of Civil
Procedure 12(b)(6). Docket No. 20. Plaintiff HV Associates LLC (“HVA”) and Plaintiff Harshi
Vashisht (“Harshi,” collectively “Plaintiffs”) oppose this motion (Docket No. 21), and PNC has
filed a reply brief (Docket No. 22). The Court has reviewed the parties’ submissions and
proceeds to rule without oral argument. See Fed. R. Civ. P. 78(b). For the reasons set forth
below, PNC’s motion will be granted in part and denied in part.
FACTUAL BACKGROUND 1
Plaintiff HVA is a staffing services company owned by Plaintiff Harshi and located in
Hoboken, New Jersey. Harshi’s husband was formerly an executive for Defendant Royal Bank
The following summary is largely based on factual allegations contained in the Amended
Complaint (“Am. Compl.,” Docket No. 16). For the purposes of this motion, the Court assumes
the truth of these factual allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
of Canada (“RBC”). In March 2012, RBC began an internal investigation of HVA as well as of
Techno-Comp, Inc. (“TCI”), a staffing vendor of RBC owned by non-party Sanjay and/or Sashi
Gundala. The investigation regarded kickbacks that TCI had allegedly paid HVA in exchange for
Harshi’s husband exploiting his executive position at RBC to ensure that the bank used TCI
contractors. In an April 2012 letter, RBC invoked its rights under the vendor contract to request
an audit of TCI’s financial transactions, to which TCI responded by terminating the staffing
In June 2012, RBC sent Plaintiffs and TCI a “Draft Complaint”—which RBC did not
subsequently file in court—in which RBC alleged that Plaintiffs had received fraudulent
kickbacks from TCI, in violation of various state laws and contractual obligations. In the Draft
Complaint, RBC stated that “bank alert resources” had revealed that TCI issued thirteen checks
payable to HVA for $20,000 each, which were deposited into HVA’s business account at PNC
and subsequently used to pay for Harshi’s personal expenses. Am. Compl. ¶ 33. Plaintiffs do not
have bank accounts at RBC, although Harshi and her husband have personal bank accounts with
PNC and HVA has the aforementioned business account there. Plaintiffs allege that the “only
way RBC would have known [about the TCI-HVA checks and HVA-Harshi transactions] is if
PNC shared private banking information with RBC.” Am. Compl. ¶ 34. Around this time, PNC’s
parent company acquired the American retail business of RBC, and Plaintiffs allege that
Defendants employed this “significant business relationship” to “collude . . . to retrieve private
and confidential banking information.” Am. Compl. ¶ 14. Sometime after Plaintiffs received this
Draft Complaint, PNC closed Harshi’s personal bank accounts and HVA’s business account.
Plaintiffs filed their complaint in the Superior Court of New Jersey in September 2017,
listing PNC Financial Services Group (“PNC Financial”) as the sole defendant. PNC Financial
removed the action to this Court in October 2017. Docket No. 1. Subsequent to a Rule 16
Scheduling Conference before Judge Waldor, Plaintiffs filed the Amended Complaint, which
substituted PNC Financial with PNC, and joined RBC as Defendant.
The Amended Complaint asserts several causes of action against PNC for: violation of
New Jersey privacy laws under the New Jersey Electronic Fund Transfer Privacy Act (Count I),
common law invasion of privacy (Count II), breach of contract (Count III), tortious interference
with contract and prospective economic advantage (Count IV), defamation and defamation per se
(Count V), trade libel (Count VI), and intentional and/or negligent infliction of emotional
distress (Count VII).
a. Motion to Dismiss Under Rule 12(b)(6)
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” The Rule 8 pleading
standard does not require “detailed factual allegations,” but it demands “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 677–78
(2009). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Id. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). 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.”
Id. (quoting Twombly, 550 U.S. at 556). Allegations that are “merely consistent with a
defendant's liability or show the mere possibility of misconduct” do not satisfy the facial
plausibility requirement. Santiago v. Warminster Twp., 629 F.3d 121, 133 (3d Cir. 2010). This
plausibility determination is “a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d
Cir. 2009) (quoting Iqbal, 550 U.S. at 679).
Courts in the Third Circuit conduct a two-part analysis when presented with a motion to
dismiss under Rule 12(b)(6). “First, the factual and legal elements of a claim should be
separated.” Fowler, 578 F.3d at 210. Courts are “required to accept as true all allegations in the
complaint and all reasonable inferences that can be drawn therefrom, and view them in the light
most favorable” to the nonmoving party. Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)
(internal citations omitted). While factual allegations must be accepted as true, courts should
“not credit either ‘bald assertions’ or ‘legal conclusions’ in a complaint.” Id. at 177; see also
James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (in deciding Rule 12(b)(6)
motions, federal courts should “disregard rote recitals of the elements of a cause of action, legal
conclusions, and mere conclusory statements”). To conduct this assessment, courts may consider
allegations in the complaint, documents attached thereto or specifically referenced therein, and
matters of public record. Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 259 (3d Cir. 1998).
Once the factual and legal elements have been separated, courts in the Third Circuit “then
determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a
‘plausible claim for relief.’” Fowler, 578 F.3d at 210–11.
a. Plaintiffs Have Not Pleaded a Valid Claim Against PNC under the New
Jersey Electronic Fund Transfer Privacy Act
Plaintiffs allege that “PNC, without notifying Plaintiffs, provided RBC with private and
confidential banking information belonging to Plaintiffs.” Am. Compl. ¶ 16. RBC allegedly
otherwise lacked access to these banking records because neither HVA nor Harshi banked with
RBC, and TCI had terminated its vendor relationship with RBC after it refused RBC’s audit
request under the terms of the vendor contract. Am. Compl. ¶¶ 12-13. Plaintiffs further allege
that PNC and RBC shared this confidential banking information through “bank alerts,” which are
suspicious activity reports filed with the Financial Crimes Enforcement Network (“FinCEN”)
pursuant to the U.S. Bank Secrecy Act (“BSA”). Am. Compl. ¶ 17.
At the time RBC sent Plaintiffs the Draft Complaint, HVA had a business checking
account and Harshi and her husband had personal bank accounts with PNC. See Docket No. 20,
Exs. A-C (the “Business Account” between PNC and HVA); Docket No. 20, Exs. D-E (the
“Personal Account” between PNC and Harshi and her husband). Plaintiffs do not allege, either
affirmatively or indirectly through the evidence cited, that PNC shared banking information with
RBC related to transactions in the Personal Account. Instead, Plaintiffs cite two paragraphs from
RBC’s 2012 Draft Complaint in support of their allegation that PNC improperly shared banking
information related to HVA’s Business Account:
23. Information obtained in RBC’s investigation from bank
alert resources … revealed that during the course of TCI's
relationship with RBC, TCI had been making regular payments to
a company named HVA. RBC received information that from
August 2011 through March 2012, TCI issued thirteen (13) checks
payable to HVA for $20,000 each. These checks … were deposited
into HVA’s bank account at PNC.
29. The illegal funds deposited into the HVA account [at
PNC] were for the mutual benefit of … Harshi [and her husband]
and were used, in part, to pay [their] personal expenses. For
example, on August 30, 2011 Harshi wrote a check from the HVA
checking account to pay down [her husband’s] line of credit, and
on January 18, 2012, Harshi wrote a check from the HVA
checking account to pay … [her husband’s] Visa credit card. Am.
Compl. ¶ 33.
As the first cause of action, Plaintiffs allege that PNC’s sharing of this banking
information violates the New Jersey Electronic Fund Transfer Privacy Act (the “Privacy Act”).
N.J. Stat. Ann. § 17:16K et seq. The Privacy Act outlines the permissible circumstances, under
New Jersey law, in which financial institutions and government agencies may disclose private
banking account information with third parties. See N.J. Stat. Ann. § 17:16K-3. Critical to the
motion at bar, the Privacy Act regulates ‘accounts’ that are “demand, time, or savings deposit, or
other consumer asset account[s], other than an occasional or incidental credit balance, held either
directly or indirectly by a financial institution and established for personal, family or household
purposes.” N.J. Stat. Ann. § 17:16K-2(b) (emphasis added).
In its capacity as a limited liability company, HVA executed an “Account Agreement for
Business Accounts” with PNC in February 2008. Docket No. 20, Ex. B. By its terms, the
Business Account does not qualify under the Privacy Act as a “consumer asset account . . .
established for personal, family or household purposes.” The HVA Business Account does not
convert into a consumer account subject to the Privacy Act merely because Harshi or her
husband allegedly used funds from the HVA Business Account for personal expenses. The
Business Account likewise does not constitute a consumer account by virtue of Plaintiffs’
conclusory assertion that “all of [the PNC accounts] were established for personal, family, and/or
household purposes.” See Am. Compl ¶ 26.
The only factual allegations that connect PNC to Harshi’s Personal Account regard the
“permanent emotional injury” caused when “PNC, without notice to its customers, closed
Plaintiffs’ . . . personal checking and savings accounts.” Am. Compl. ¶¶ 26-28. Since this
account closure does not concern the disclosure of private banking information to third parties,
these allegations likewise fail to state a claim with facial plausibility under the Privacy Act. See
N.J. Stat. Ann. § 17:16K-3. As such, this Court grants Defendant’s motion to dismiss Plaintiffs’
first cause of action for violations of the Privacy Act.
b. Plaintiffs Have Pleaded a Valid Claim Against PNC for Common Law
Invasion of Privacy
i. Plaintiffs Have Pleaded, with Facial Plausibility, that PNC Publicly
Disclosed Private Facts to RBC
Under New Jersey law, common law invasion of privacy comprises four distinct torts:
intrusion; placing a plaintiff in a false light in the public eye; appropriation of a plaintiff's name
or likeness for defendant's benefit; and the public disclosure of private facts. Rolax v. Whitman,
175 F. Supp. 2d 720, 726 (D.N.J. 2001), aff’d, 53 F. App’x 635 (3d Cir. 2002) (quoting
Rumbauskas v. Cantor, 138 N.J. 173, 180 (N.J. 1994)). To establish a claim for the public
disclosure of private facts, Plaintiffs must demonstrate “(1) that private matters were revealed;
(2) that dissemination of such facts would be highly offensive to a reasonable person; and (3)
that there is no legitimate public interest in the disclosure.” W.P. v. Princeton Univ., 2016 WL
7493965, at *2 (D.N.J. Dec. 30, 2016); see also Romaine v. Kallinger, 109 N.J. 282, 297 (N.J.
1988). Because Plaintiffs have alleged sufficient facts, which when accepted as true demonstrate
a plausible entitlement to relief for the public disclosure of private facts, this Court denies
Defendant’s motion to dismiss Count II of the Amended Complaint.
Under New Jersey law, individuals have a protected interest in their private banking
records. State v. McAllister, 184 N.J. 17, 29 (N.J. 2005) (“[A]rticle I, paragraph 7 of the New
Jersey Constitution recognizes a citizen’s reasonable expectation of privacy in his or her bank
records, even when those records are in the possession of the bank.”). Plaintiffs plead specific
facts to plausibly establish that their private banking records were disclosed to RBC. See Am.
Compl. ¶ 33 (identifying private records related to TCI’s issuance of 13 checks worth $20,000
each deposited into HVA’s business account at PNC, and identifying specific instances and dates
when Harshi wrote checks from HVA’s business account at PNC to pay for certain personal
Plaintiffs further establish, with facial plausibility, that it was PNC who revealed this
information to RBC. In its motion, Defendant claims that there is “not one scintilla of evidence”
to establish that PNC revealed these banking records to RBC, as the Draft Complaint does not
state that RBC received the information from PNC. Docket No. 20, 11. Further, Defendant
contends that RBC could have received this information from alternative sources, such as TCI
and Gundala, TCI’s bank, an RBC Visa card, or another financial institution. Docket No. 20, 1112. Unlike other potential sources, however, PNC was privy to both types of bank records (the
TCI-HVA checks and the HVA-Harshi payments). Further, Plaintiffs allege a plausible
mechanism by which Defendants could share such information, through the SAR reports filed
with FinCEN pursuant to the BSA. Plaintiffs also allege that this information sharing was
facilitated by the “significant business relationship” between Defendants created through the
then-recent acquisition by PNC’s parent company of the American retail business of RBC. Am.
Compl. ¶ 14. Together, these factual allegations render it plausible that PNC revealed these
records to RBC. Since the facial plausibility requirement under Rule 8 “is not akin to a
probability requirement” (see Iqbal, 556 U.S. at 678), such factual allegations suffice to
withstand Defendant’s motion to dismiss.
ii. This Court will Not Dismiss Plaintiffs’ Claim for Invasion of Privacy
Under the BSA Safe Harbor Provision
Under Section 314(b) of the BSA, financial institutions may “transmit, receive, or
otherwise share information with any other financial institution” to identify and report activities
that the institutions suspect “may involve possible terrorist activity or money laundering.” See 31
C.F.R. § 1010.540. The BSA includes a statutory safe harbor that protects financial institutions
from civil liability provided that they comply with certain requirements, including the “notice,”
“verification,” and “use and security of information” requirements in subsections (b)(2)-(4). See
31 C.F.R. § 1010.540(b)(5)(ii) (the safe harbor “shall not apply . . . to the extent such institution
or association fails to comply with paragraphs (b)(2), (b)(3), or (b)(4)”). To qualify for the safe
harbor, the shared information must concern “[i]dentifying and, where appropriate, reporting on
money laundering or terrorist activities.” 31 C.F.R. § 1010.540(b)(4)(i)(A); see also FinCEN
Ruling, FIN-2012-R006, Administrative Ruling Regarding the Participation of Associations of
Financial Institutions in the 314(b) Program, July 25, 2012, at 3 (“To reiterate, information
shared for the purposes of identifying fraud or other specified unlawful activity that is not related
to a transaction involving the possibility of money laundering and/or terrorist financing is not
covered by the statutory safe harbor.”).
Defendant argues that the safe harbor provision is an affirmative defense that “cloaks
PNC with immunity from civil liability for sharing information regarding potentially suspicious
activities with other financial institutions.” Docket No. 20, 17. Conversely, Plaintiffs argue that
this safe harbor provision does not apply because PNC “knew or should have known that neither
Harshi nor HVA were engaged in terrorist activities or money laundering,” because PNC did not
submit the requisite written notice to FinCEN before sharing the information, and because PNC
did not verify that RBC had complied with this notice requirement. Am. Compl. ¶ 40.
Because the BSA safe harbor constitutes an affirmative defense inappropriate for
resolution under a Rule 12(b)(6) motion, this Court does not need to determine whether PNC’s
conduct qualifies for the safe harbor. Under Third Circuit law, an affirmative defense—such as
the safe harbor provision—may serve as grounds for dismissing a claim under Rule 12(b)(6)
“only if the basis for the defense is evident on the face of the complaint.” Brody v. Hankin, 145
F. App’x 768, 771 (3d Cir. 2005)(emphasis in original). Such a basis is facially established
where “plaintiff’s own allegations show that a defense exists that legally defeats the claim for
relief.” R.K. v. Y.A.L.E. Sch., Inc., 2009 WL 1066125, at *3 (D.N.J. Apr. 20, 2009). Where the
defense is not apparent on the face of the complaint, however, the district court “instead should
(1) deny the motion without prejudice to renew in the form of a motion for summary judgment
pursuant to Fed.R.Civ.P. 56, or (2) convert the Rule 12(b)(6) motion into a Rule 56 motion
pursuant to Fed.R.Civ.P. 12(d).” Kisby Lees Mech. LLC v. Pinnacle Insulation, Inc., 2012 WL
3133681, at *4 (D.N.J. July 31, 2012) (quoting Rycoline Prod., Inc. v. C & W Unlimited, 109
F.3d 883, 886 (3d Cir. 1997)). Plaintiffs’ allegations do not indicate that the safe harbor applies;
rather, Plaintiffs allege several reasons why it is inapplicable. Accordingly, this Court denies
without prejudice Defendant’s motion to dismiss under this affirmative defense, and further
grants Defendant leave to renew its affirmative defense in a motion for summary judgment on
the basis of record evidence.
iii. This Court will Not Dismiss Plaintiffs’ Claim for Invasion of Privacy
Under the Economic Loss Doctrine or the Statute of Limitations
In its motion, Defendant argues that “Plaintiffs’ common law tort claims are barred by
the economic loss rule,” since the “harm allegedly caused arises from the contractual relationship
between Plaintiffs and PNC, not any independent duty that PNC Bank allegedly owed to
Plaintiffs.” Docket No. 20, 23-24. Under New Jersey law, the economic loss doctrine “prohibits
plaintiffs from recovering in tort economic losses to which their entitlement only flows from a
contract,” however “a tort claim can be asserted alongside a breach of contract claim . . . [if] the
tortious conduct is extrinsic to the contract between the parties.” State Capital Title & Abstract
Co. v. Pappas Bus. Servs., LLC, 646 F. Supp. 2d 668, 676 (D.N.J. 2009). With respect to the
invasion of privacy claim, the alleged tortious conduct—PNC’s unauthorized disclosure of
private bank records to RBC—is extrinsic to the Business and Personal Account contracts signed
between PNC and Plaintiffs. Defendant cites no Third Circuit case law that has decided
otherwise. Accordingly, this Court will not dismiss, under Rule 12(b)(6), Plaintiffs’ invasion of
privacy claim under the economic loss doctrine.
Defendant also argues that “Plaintiffs’ tort law claims . . . are barred by the two-year
statute of limitations set forth in N.J.S.A. 2A:4-2.” Docket No. 20, 24. Plaintiffs did not address
this issue in their reply brief. Under New Jersey law, certain invasion of privacy torts such as
appropriation are governed by a six-year statute of limitations under N.J. Stat. Ann. § 2A:14-1,
while other invasion of privacy torts like intrusion on seclusion are governed by a two-year
statute of limitations under N.J. Stat. Ann. § 2A:14-2. See Rumbauskas v. Cantor, 138 N.J. 173,
175 (N.J. 1994). The New Jersey Supreme Court has not yet determined which limitations
applies to the privacy tort of public disclosure of private facts. Smith v. Datla, 451 N.J. Super.
82, 91 (N.J. App. Div. 2017) (“New Jersey courts have not established a statute of limitations for
the public disclosure of private facts”); Rumbauskas, 138 N.J. at 183 (declining to determine this
issue, as “limitation periods applicable to actions involving other types of invasion of privacy are
not before us”). Further, in the Third Circuit, “if the [statute of limitations] bar is not apparent on
the face of the complaint, then it may not afford the basis for a dismissal of the complaint under
Rule 12(b)(6).” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). As such, this Court
declines to dismiss, under Rule 12(b)(6), Plaintiffs’ count for common law invasion of privacy as
time-barred by the two-year limitations in N.J. Stat. Ann. § 2A:14-2.
c. Plaintiffs’ Other Causes of Action Do Not State a Valid Claim Against PNC
Upon Which Relief May Be Granted
In the Amended Complaint, Plaintiffs plead five other causes of action against PNC:
breach of contract (Count III), tortious interference with contract and prospective economic
advantage (Count IV), defamation and defamation per se (Count V), trade libel (Count VI), and
the intentional and/or negligent infliction of emotional distress (Count VII). In evaluating
Defendant’s motion to dismiss, this Court must first separate the factual and legal elements
before determining whether the alleged facts suffice to show a plausible claim for relief. See
Fowler, 578 F.3d at 210–11. Since the remaining five causes of action do not plead sufficient
facts to demonstrate the plausible entitlement to relief, this Court grants Defendant’s motion to
dismiss Counts III through VIII against it.
i. Breach of Contract (Count III)
In the Amended Complaint, Plaintiffs allege that the “aforesaid conduct of PNC, without
notice to Plaintiffs, constitutes, inter alia, PNC’s breaches of various contracts and/or agreements
with Plaintiffs concerning their various bank accounts at PNC.” Am. Compl. ¶ 60. There are four
elements to state a valid claim for breach of contract under New Jersey law: (1) a contract
between the parties; (2) a breach of that contract; (3) damages flowing therefrom; and (4) that the
party stating the claim performed its own contractual obligations. Frederico v. Home Depot, 507
F.3d 188, 203 (3d Cir. 2007).
With respect to the breach of contract element, Plaintiffs factually allege that PNC closed
these accounts “without notice” and that “some of those Accounts . . . [were] opened over fifteen
(15) years earlier, and all ha[d] more than sufficient amounts of money on deposit and no
suspicious activities.” Am. Compl. ¶ 26. Neither the Amended Complaint nor the operative
contracts for the Business and Personal Accounts indicate why the Accounts’ opening date,
account balance, or lack of suspicious activities have any bearing on PNC’s alleged breach of
contract. See Docket No. 20, Exs. A-E. Instead, these facts appear irrelevant and accordingly
cannot substantiate Plaintiffs’ entitlement to relief for breach of contract. With respect to the
prior notice given, only the Personal Account requires prior notice and PNC appears to have
complied with this requirement by providing written notice on September 27, 2012. Comp.
Docket No. 20, Exs. A and D; Docket No. 20, Ex. F. Plaintiffs have not pleaded sufficient facts
to plausibly demonstrate how PNC breached the operative contracts. As such, this Court grants
Defendant’s motion to dismiss the breach of contract claim under Rule 12(b)(6).
ii. Tortious Interference with Contract and Prospective Economic Advantage
For the tortious interference claim, Plaintiffs allege that “PNC interfered with HVA’s
contractual relationships and/or with its prospective economic advantage with such companies as
Credit Suisse, Marsh & McLennan, Deloitte Consulting and HCL Technologies” and that PNC
“interfered, and will continue to interfere, with, inter alia, Harshi’s employability in a regulatory
position and other jobs in the banking industry.” Am. Compl. ¶¶ 64-65. To state a valid claim for
tortious interference under New Jersey law, Plaintiffs must establish “(1) a reasonable
expectation of economic advantage to plaintiff; (2) interference done intentionally and with
malice; (3) causal connection between the interference and the loss of prospective gain; and (4)
actual damages.” Luttmann v. Tiffany & Co., 2009 WL 197520, at *2 (D.N.J. Jan. 26, 2009)
(quoting Varrallo v. Hammond Inc., 94 F.3d 842, 848 (3d Cir. 1996)). Plaintiffs allege no facts
in support of the second, third or fourth elements, but instead rely on legal conclusions that
cannot form the basis for stating a plausible claim to relief. See, e.g., Am. Compl. ¶ 67
(“Defendants’ aforesaid conduct was willful, wanton, malicious and in reckless disregard of
Harshi’s rights”); Am. Compl. ¶ 66 (“As a direct and proximate result thereof, Plaintiffs have
suffered damages”). As such, this Court grants Defendant’s motion to dismiss the tortious
interference cause of action under Rule 12(b)(6).
iii. Defamation and Defamation Per Se (Count V)
With respect to PNC’s conduct for the defamation and defamation per se cause of action,
Plaintiffs allege that “[b]y improperly sharing private and confidential banking information
through ‘bank alerts,’ and based upon a faulty investigation, RBC and PNC enabled rumors to
circulate concerning, among others, HVA and Harshi, that were demonstrably false.” Am.
Compl. ¶ 69. Under New Jersey law, a valid claim for defamation requires the plaintiff to
establish (1) that the defendant made a defamatory statement of fact; (2) concerning the plaintiff;
(3) which was false; (4) which was communicated to persons other than the plaintiff; and (5)
fault. Paul v. United Parcel Serv., 2005 WL 3307268, at *2 (D.N.J. Dec. 6, 2005) (quoting Taj
Mahal Travel, Inc. v. Delta Airlines Inc., 164 F.3d 186, 189 (3d Cir. 1998)). The Amended
Complaint does not contain sufficient factual allegations that PNC made false, defamatory
statements regarding Plaintiffs. Instead, Plaintiffs impermissibly rely on legal conclusions. See,
e.g., Am. Compl. ¶ 73 (“This publicly filed, false and defamatory information”); Am. Compl. ¶
74 (“HVA and Harshi have suffered, and will continue to suffer, among other things, significant
damage”). As such, the joint defamation and defamation per se cause of action fails to satisfy the
Twombly/Iqbal pleading standards, and this Court grants Defendant’s motion to dismiss this
cause of action under Rule 12(b)(6).
iv. Trade Libel (Count VI)
The sixth count for trade libel similarly lacks sufficient factual allegations to satisfy Rule
8 pleading standards. New Jersey law requires plaintiffs to establish four elements for a valid
claim under trade libel: “(1) publication (2) with malice (3) of false allegations concerning
plaintiff's property or product (4) causing special damages, i.e., pecuniary harm.” Intervet, Inc. v.
Mileutis, Ltd., 2016 WL 740267, at *6 (D.N.J. Feb. 24, 2016) (quoting System Operations, Inc.
v. Scientific Games Dev. Corp., 555 F.2d 1131, 1140 (3d Cir. 1977)). Instead of supporting these
elements through factual allegations, Plaintiffs instead plead legal conclusions. See, e.g., Am.
Compl. ¶ 77 (“The aforesaid conduct, including, but not limited to, the false and defamatory
information”); Am. Compl. ¶ 78 (“HVA have suffered, inter alia, a loss of business and has
otherwise been damaged”); Am. Compl. ¶ 79 (“The aforesaid conduct of RBC and PNC was
willful, wanton, malicious and/or in reckless disregard of HVA’s rights”). Accordingly, this
count fails Rule 8 pleading standards, and this Court grants Defendant’s motion to dismiss the
trade libel cause of action under Rule 12(b)(6).
v. Intentional and/or Negligent Infliction of Emotional Distress (Count VII)
Plaintiffs’ claim for intentional and/or negligent infliction of emotional distress is
deficient under the Twombly/Iqbal pleading standards. To establish a prima facie claim for
intentional infliction of emotional distress under New Jersey law, Plaintiffs must establish that
Defendants intended to cause emotional distress; that the conduct was extreme and outrageous;
that the actions proximately caused emotional distress; and that Plaintiffs’ emotional distress was
severe. Van Tassel v. Ocean Cty., 2017 WL 5565208, at *8 (D.N.J. Nov. 17, 2017). For
negligent infliction of emotional distress, New Jersey law provides two legal theories for
Plaintiffs to establish a prima facie case. First, Plaintiffs may show death or serious physical
injury of another caused by defendant's negligence; a marital or intimate family relationship
between plaintiff and the injured person; observation of the death or injury at the scene of the
accident; and resulting severe emotional distress. Van Tassel, 2017 WL 5565208 at *9 (quoting
Fleming v. United Parcel Serv., Inc., 255 N.J. Super. 108, 166 (N.J. Super. Ct. Law Div.)).
Alternatively, under the “zone of danger rule,” the “immediate fear of personal injury could
serve as the basis for recovery so long as ‘substantial bodily injury or sickness’ result.” Van
Tassel, 2017 WL 5565208 at *9 (quoting Abouzaid v. Mansard Gardens Ass'n, LLC., 207 N.J.
67, 77 (N.J. 2011)). For both intentional and negligent infliction of emotional distress, Plaintiffs
once more impermissibly plead legal conclusions in lieu of factual allegations. See, e.g., Am.
Compl. ¶ 82 (“Defendants intentionally and/or negligently breached said duties to Harshi which
proximately caused her embarrassment, severe emotional distress and mental anguish”); Am.
Compl. ¶ 83 (“The aforesaid conduct of RBC and PNC was willful, wanton, malicious and/or in
reckless disregard of Harshi’s rights”). As such, the count for intentional and/or negligent
infliction of emotion distress fails the Twombly/Iqbal pleading standards, and will be dismissed.
For the foregoing reasons, Plaintiffs’ final five causes of action in the Amended
Complaint all fail to allege sufficient facts to plausibly establish an entitlement to relief. As such,
this Court grants Defendant’s motion to dismiss the claims for breach of contract (Count III),
tortious interference with contract and prospective economic advantage (Count IV), defamation
and defamation per se (Count V), trade libel (Count VI), and the intentional and/or negligent
infliction of emotional distress (Count VII).
Accordingly, for the foregoing reasons; and for good cause shown;
IT IS on this 8th day of March, 2018;
ORDERED that Defendant PNC’s motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6), is GRANTED in part and DENIED in part; and further
ORDERED that that Defendant PNC’s motion to dismiss the first count of the Amended
Complaint, for violations of New Jersey privacy laws with regard to bank records under the
Privacy Act, is GRANTED; and further
ORDERED that that Defendant PNC’s motion to dismiss the second count of the
Amended Complaint, for common law invasion of privacy, is DENIED without prejudice; and
ORDERED that that Defendant PNC’s motion to dismiss the remaining counts of the
Amended Complaint, for breach of contract (Count III), tortious interference with contract and
prospective economic advantage (Count IV), defamation and defamation per se (Count V), trade
libel (Count VI), and the intentional and/or negligent infliction of emotional distress (Count VII),
is GRANTED; and further
ORDERED that Plaintiff is granted leave to further amend the Amended Complaint to
cure the pleading deficiencies identified in this Opinion, and specifically to support Count I and
Counts III-VII with sufficient factual allegations to plausibly demonstrate an entitlement to
/s Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
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