ESSGEEKAY CORPORATION v. TD BANK N.A.
Filing
22
OPINION. Signed by Judge Esther Salas on 12/19/2018. (sm)
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ESSGEEKAY CORPORATION d/b/a
AMERICAN PRESCRIPTION SURGICAL
CENTER,
Civil Action No. 18-3663 (ES) (CLW)
Plaintiff,
OPINION
v.
TD BANK, N.A.,
Defendant.
SALAS, DISTRICT JUDGE
Before the Court is Defendant TD Bank, N.A.’s (“TD”) motion to dismiss Plaintiff Essgeekay
Corporation’s (“Plaintiff”) Complaint under Federal Rule of Civil Procedure 12(b)(6). (D.E. No. 3).
The Court has jurisdiction pursuant to 28 U.S.C. § 1332. Having considered the parties’ submissions,
the Court decides this matter without oral argument. See Fed. R. Civ. P. 78(b). As set forth below,
the Court DENIES TD’s motion to dismiss as to Count I and GRANTS TD’s motion to dismiss as to
Count II and Count III.
I.
BACKGROUND 1
Plaintiff is a pharmacy located in Fort Lee, New Jersey, represented by Sreedhar Vajinepalli
and Kalpesh Dave. (D.E. No. 1-1, Complaint (“Compl.”) ¶¶ 5 & 9). In February of 2009, Vajinepalli
and Dave opened a TD business checking account on behalf of Plaintiff, over which they had sole
control. (Id. at ¶¶ 8–9). Upon opening the account, TD provided each Vajinepalli and Dave
independent login credentials to access the online banking system—credentials that they did not share
1
The Court must accept Plaintiff’s factual allegations as true for purposes of resolving the pending motion to
dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012).
with each other or anyone else. (Id. ¶¶ 10–12). As an additional security protocol, Vajinepalli and
Dave selected individualized security questions and provided confidential responses. (Id. ¶¶ 11–12).
As a matter of business, each month Vajinepalli arranged five to six wire transfers to pay
various pharmacy wholesalers operating in New York and New Jersey. (Id. ¶¶ 13–14). Plaintiff
alleges that “wire transfers were not generally made for any other purpose” and Dave was not
involved in the wire transfers and never initiated a transfer from his online account. (Id. ¶¶ 13–14).
Whenever Vajinepalli attempted to login to the online account from an unfamiliar computer, TD
would lock the account and require him to call the bank and “provide identifying corporate
information . . . as well as the answers to his specific security questions.” (Id.).
Sometime after June 7, 2016, Vajinepalli logged into the online account with his personal
username and noticed three unauthorized wire transfers to bank accounts in California, Oklahoma,
and Texas. (Id. ¶¶ 16–17). The transfers totaled approximately $176,000. (Id. ¶ 16). Plaintiff alleges
that none of these transfers were consistent with either the identity or location of the usual payees
involved in prior wire transfers. (Id.). Soon after, Vajinepalli discovered that the transfers were
initiated from Dave’s online account without Dave’s approval, rather than Vajinepalli’s account, as
was the usual process. (Id. ¶¶ 15 & 17). Upon discovery of the transfers, Dave attempted to login to
his account, but was unable to because security procedures had locked him out. (Id. ¶ 17).
When Dave called TD to report the issue, the representative informed him that TD had locked
his account because TD suspected fraudulent activity. (Id. ¶ 18). TD did not, however, explain the
basis of this suspicion. (Id. ¶ 25). TD claimed that before processing the transfers, it attempted to
contact Dave by phone and email to obtain approval for the transfers. (Id. ¶¶ 26–27). TD “ultimately
authorized the transfers” even though TD “never received such approval from Dave for any of the
transfers.” (Id. ¶ 27). Dave asked TD representatives to disclose the contact information they had
used to contact him, but TD did not provide the information. (Id. ¶ 26).
2
On June 13, 2016, Vajinepalli visited the Parsippany branch of TD seeking answers about the
fraudulent transfers. (Id. ¶ 20). However, TD representatives informed Vajinepalli that the Bank
required “a police report before TD . . . could take action with respect to recovering the funds.” (Id.
¶ 19). Vajinepalli immediately filed a report with the Parsippany-Troy Hills Police department, but
Plaintiff alleges that even then, TD failed to effectuate a reversal of the fraudulent transfers and failed
to provide Plaintiff with any additional information about the transfers or TD’s purported
investigation. (Id. ¶¶ 20–22). This prompted Dave to call TD two to three times a day to seek more
information, but each time he was transferred from one department to another without ever receiving
the requested information. (Id. ¶ 23).
Four days later, on June 17, 2016, TD assigned the case to a corporate security representative
and attempted to reverse the transfers, but was unable to do so as the transferee(s) had already
removed the funds. (Id. ¶¶ 24, 28 & 30–31). On June 20, 2016, TD informed Plaintiff by phone that
the funds were lost, and that they would be unable to process the reversal. (Id. ¶¶ 30–31). Plaintiff
filed this action in the Superior Court of New Jersey and TD subsequently removed the case to this
Court. (See D.E. No. 1).
II.
LEGAL STANDARD
To withstand 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.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 2 “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. “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id.
2
Unless otherwise indicated, all citations and internal quotation marks are omitted, and all emphasis is added.
3
“When reviewing a motion to dismiss, [a]ll allegations in the complaint must be accepted as
true, and the plaintiff must be given the benefit of every favorable inference to be drawn therefrom.”
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). But the court is not required to accept as true
“legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Finally, “[i]n deciding a Rule 12(b)(6) motion, a court must consider only the complaint,
exhibits attached to the complaint, matters of the public record, as well as undisputedly authentic
documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605
F.3d 223, 230 (3d Cir. 2010); see also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.
2006); In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1426 (3d Cir. 1997).
III.
ANALYSIS
The parties make a number of arguments in favor of their respective positions. The Court
addresses only arguments relevant to the disposition of TD’s motion. As outlined below, the Court
denies TD’s motion as to Count I because Plaintiff has pleaded sufficient facts to state a claim for
violation of the New Jersey Uniform Commercial Code (“UCC”) provisions codified at N.J.S.A. §
12A:4A-202 and N.J.S.A. § 12A:4A-203. However, the Court dismisses Counts II and III because
these common law claims are displaced by the New Jersey UCC.
A.
Count I: Violation of N.J.S.A. § 12A:4A-202 and N.J.S.A. § 12A:4A-203
TD argues the Court should dismiss Count I as a matter of law because Plaintiff admits that
TD had security procedures in place, which were effective in the past, and which were followed for
the alleged fraudulent transfers. (D.E. No. 4 (“Def. Mov. Br.”) at 6). 3 As a result, TD avers that
3
TD attaches as an exhibit to its motion an account agreement allegedly binding Plaintiff. (See D.E. No. 3-2; Def.
Mov. Br. at 2–3, 6 & 12). However, Plaintiff did not attach or otherwise referred to any such agreement in its Complaint,
and Plaintiff disputes that the exhibit is the agreement it entered with TD when Plaintiff opened the account. (D.E. No.
13 (“Pl. Opp.”) 12). Therefore, the Court does not rely on Defendant’s exhibit or any of the arguments that rely or quote
language from it. Cf. Mayer, 605 F.3d at 230.
4
under the New Jersey UCC the risk of loss shifted to Plaintiff and TD is not liable for the loss. (Def.
Mov. Br. at 7).
Plaintiff counters that it has sufficiently alleged that that TD’s security procedures were not
“commercially reasonable” as required by N.J.S.A. § 12A:4A-202. (Pl. Opp. at 9). Particularly,
Plaintiff argues that while the determination of commercial reasonableness is a question of law, it
requires consideration of fact-sensitive inquiries which are not appropriate at the motion to dismiss
stage.
(Id. at 10).
Additionally, Plaintiff argues that even if TD’s security measures were
commercially reasonable, Plaintiff has sufficiently alleged that the bank failed prove that “it accepted
the payment order in good faith and in compliance with the security procedure and any written
agreement or instruction of the customer. . . .” (Id. at 14).
N.J.S.A. § 12A:4A-202(2) provides that the customer will be liable for an alleged fraudulent
transfer if the bank and customer have agreed upon “a security procedure to verify the authenticity of
payment orders” that is commercially reasonable and “the bank proves that it accepted the payment
order in good faith and in compliance with the security procedure and any written agreement or
instruction of the customer. . . .” Whether a bank’s security procedure is commercially reasonable is
an issue of law for the Court to determine. N.J.S.A. § 12:4A-202(3). The comments to Article 4A203 illustrate a desire to define commercial reasonableness based on the facts of each case. See
N.J.S.A. § 12A:4A-203 cmt. 4. There is very little jurisprudence discussing commercially reasonable
security procedures in the context of UCC Section 202. Therefore, the Court is guided primarily by
the language of N.J.S.A. § 12A:4A-202 and standard industry practice.
According to the official comments the purpose of the statute, as it pertains to electronic
transfers, is to authenticate the identity of the individual who sends the payment order as well as to
prevent mistakes. N.J.S.A. § 12A:4A-203 cmt. 4. The Federal Financial Institutions Examinations
5
Council (“FFIEC”) 4 issued specific guidance to banks for adopting security measures to avoid
fraudulent transfers. See FFIEC, Authentication in an Internet Banking Environment (Oct. 12, 2005),
available
at
https://www.ffiec.gov/pdf/authentication_guidance.pdf
(hereinafter
“FFIEC
Guidelines”). The FFIEC Guidelines were intended to aid financial institutions in “evaluating and
implementing authentication systems and practices whether they are provided internally or by a
service provider.” Id. at 1. The FFIEC recommends that modern banking security procedures involve
two-factor authentication selected from three types of factors: (i) something the user knows (e.g., PIN
or security question answer); (ii) something the user has (e.g., card or device); (iii) and something the
user is (e.g., biometrics). Id. at 3. Several sister courts in jurisdictions that have adopted very similar
language to New Jersey’s UCC section 202 have applied the FFIEC Guidelines when determining the
commercial reasonableness of a bank’s security procedures. See, e.g., Choice Escrow and Land Title,
LLC v. BancorpSouth Bank, 754 F.3d 611, 619– 20 (8th Cir. 2014); Patco Const. Co., Inc. v. People’s
United Bank, 684 F.3d 197, 201 (1st Cir. 2012).
As a threshold matter, the Court disagrees with Plaintiff’s argument that the determination of
commercial reasonableness is not appropriate at the motion to dismiss stage. While under the statute
the determination of commercial reasonableness will depend on the facts of each case, N.J.S.A. §
12A:4A-203 cmt. 4, that does not prevent the Court from making a legal determination based on the
facts as alleged by the Complaint. After all, the legal question at the motion to dismiss stage is
whether, taking all the facts as alleged by Plaintiff to be true, the Complaint shows that Plaintiff has
stated a claim for which relief can be granted. See Iqbal, 556 U.S. at 678. Answering that question
at this stage does not require the Court to look beyond the facts alleged in the Complaint and the
documents that are integral to the Complaint.
4
The FFIEC is an interagency body created by Congressional statute and charged with “establish[ing] uniform
principles and standards and report forms for the examination of financial institutions which shall be applied by the
Federal financial institutions regulatory agencies.” 12 U.S.C. § 3305(a).
6
Here, Plaintiff concedes that TD had various security procedures in place and that these
procedures effectively barred access to the online accounts on previous occasions. (See Pl. Opp. at
4). Plaintiff describes at least three protocols implemented by TD for the purpose of securing the
account. First, both representatives for Plaintiff were “provided with independent login information
to access the online banking system.” (Compl. ¶ 10). Second, Vajinepalli and Dave selected
independent security questions and answers that were to be used to identify themselves for the purpose
of accessing the account. (Id. ¶ 11). Both the login information and security questions constitute
“something the user knows.” See FFIEC Guidelines at 3. Third, Plaintiff’s account was configured
to lock out a user if a login was attempted from an unrecognized computer, requiring Plaintiff’s
representatives to call TD and provide corporate information and security question answers to regain
access. (Compl. ¶ 14). The unfamiliar device lockout constitutes “something the user has,” i.e. a
familiar computer. See FFIEC Guidelines at 3. Accordingly, the Court finds for purposes of the
current motion that, as alleged by the Complaint, TD’s implemented two-factor authentication
procedure is commercially reasonable.
The risk of a fraudulent payment order remains with TD, however, unless TD “proves that it
accepted the payment order in good faith and in compliance with the security procedure and any
written agreement or instruction of the customer. . . .” N.J.S.A § 12A:4A-202(2). This is a question
of fact. N.J.S.A. § 12A:4A-203 cmt. 4. The code defines good faith as “honesty in fact and the
observance of reasonable commercial standards of fair dealing.” N.J.S.A. § 12A:1-201(20). “This
two-pronged definition has both a subjective component—honesty in fact—and an objective
component—the observance of reasonable commercial standards of fair dealing.” BancorpSouth
Bank, 754 F.3d at 622. The subjective prong concerns whether the bank accepted the payment order
honestly. See id. at 623. The objective prong concerns whether the bank accepted the payment order
in accordance with the security procedures “in a way that reflects the parties’ reasonable expectations
7
as to how those procedures will operate.” Id. Thus, Defendant must show that its employees accepted
and executed the payment orders in a way that comported with Plaintiff’s “reasonable expectations,
as established by reasonable commercial standards of fair dealing.” Id. 5
Plaintiff notes that on previous occasions when Vajinepalli attempted to access the account
from an unfamiliar computer, the bank’s security procedures blocked access to the account before
any transfers were made. (Compl. ¶ 14; Pl. Opp. at 13–14). Therefore, this effective response is the
foundation upon which Plaintiff’s expectations rest. Plaintiff claims that TD failed to act with this
previously-demonstrated effectiveness. (Pl. Opp. at 13–14). To support this claim, Plaintiff asserts
among other things that an unauthorized user was able to access the account using Dave’s information
“from a different computer” and made several large transfers, and TD failed to promptly recognize
this activity and lock the account as it had previously done. (Compl. ¶ 15). At its core, Plaintiff
essentially argues that the unfamiliar device lockout procedure failed to stop an individual from
logging into the account on an unfamiliar device.
TD argues that the “Complaint admits that the transfers initiated from Dave’s user login” and
that the security procedure verified the transfers. (Def. Mov. Br. at 7). As such, TD argues that the
“only reasonable inference to draw from [these] allegations is that” someone used Dave’s login
information on his own “known” computer to initiate the transfers; i.e. that this was an “inside job.”
(Id.). But this ignores that at the motion to dismiss stage the Court must draw all reasonable inferences
in favor of Plaintiff. See Malleus, 641 F.3d at 563. Additionally, TD’s argument ignores that TD
apparently attempted to contact Dave to confirm the transfers, and ultimately locked Dave’s account,
because TD suspected that the activity was fraudulent. (Def. Mov. Br. at 3; Compl. ¶ 18 & 26–27).
5
Though “there may be some evidentiary overlap” between evaluating the commercial reasonableness of the
security procedure and the bank’s compliance, “the commercial reasonableness inquiry concerns the adequacy of a bank’s
security procedures, [whereas] the objective good faith inquiry” concerns the manner in which the bank complied or acted
in accordance with the implemented security procedure. BancorpSouth Bank, 754 F.3d at 623.
8
Thus, taking the Complaint’s factual allegations as true and drawing all reasonable inferences in favor
of Plaintiff, as the Court must do, the inference can be drawn that TD failed to prevent an unauthorized
individual from accessing the account on an unknown computer, and that TD permitted these transfers
to go through despite being unable to confirm their authenticity with Dave and despite suspicions that
they were fraudulent. (See Compl. ¶ 18 & 26–27). As such, Plaintiff has sufficiently pleaded that
TD failed to accept the payment orders in good faith and in compliance with the security procedure.
Therefore, the Court finds that Plaintiff’s Article 4A-202 claim is sufficiently well-pled and denies
TD’s motion to dismiss Count I. 6
B.
Common Law Clams
TD argues that New Jersey’s adoption of the above UCC provisions displaces the common
law negligence claim in Count II and the fiduciary duty claim in Count III. (Def. Mov. Br. at 8).
Plaintiff counters that upon creation of the account, TD “assumed a duty to use reasonable care to
keep Plaintiff’s [a]ccount information private and secure,” and that by investigating the transfers TD
“assumed a duty to assist Plaintiff in the recovery of the funds stolen from its Account.” (Compl. ¶¶
42–43; see also Pl. Opp. at 18). In reply, TD avers that “the facts pled support displacement of the
common law claims by the UCC” and that in any event, Plaintiff’s does not allege any facts supporting
creating a special relationship. (D.E. No. 14 at 7).
6
Even assuming the transfers were valid under Article 4A-202, the Court finds that Plaintiff has sufficiently
pleaded facts to support its claim under Article 4A-203. Article 4A-203 provides an exception to Article 4A-202 in which
the customer may shift the loss to the bank upon proof that he is not responsible for compromising of the confidential
access information. N.J.S.A. § 12A:4A-203 cmt. 5. New Jersey law places the burden of “safeguard[ing] confidential
security information and access to transmitting facilities” on the customer. Id. at cmt. 4. The parties agree that the alleged
fraudulent transfers were initiated using Dave’s confidential login credentials. (Compl. ¶ 15). Thus, it appears that
Plaintiff failed to meet its burden of safeguarding Dave’s login credentials. But, as the exception allows, Plaintiff is
permitted to rebut this apparent failure with evidence that it or its agents are not responsible for the disclosure of login
credentials. N.J.S.A. § 12A:4A-203(b).
A showing that the credentials were not obtained from the customer will shift the loss to the bank. Id. at cmt. 5.
Plaintiff avers that Dave’s security credentials were not disclosed to anyone, and that even Vajinepalli did not know
Dave’s login information or security question responses. (Compl. ¶ 12). Thus, for purposes of the present motion, the
Court must draw the reasonable inference that Plaintiff was not at fault for the compromising of the confidential login
information. As such, the Court finds that the Article 4A-203 claim is sufficiently pled for purposes of the present motion.
9
The Official Comment to N.J.S.A. 12A:4A–102 “provides that Article 4A comprehensively
governs the rights and remedies of parties affected by funds transfers.” ADS Ass’n Grp., Inc. v.
Oritani Sav. Bank, 99 A.3d 345, 359 (N.J. 2014) (citing N.J.S.A. § 12A:4A-102 cmt. 1
(“Consequently, resort to principles of law or equity outside of Article 4A is not appropriate to create
rights, duties and liabilities inconsistent with those stated in this Article.”)). “[T]he UCC displaces
the common law where reliance on the common law would thwart the purposes of the UCC.” Psak,
Graziano & Whitelaw v. Fleet Nat. Bank, 915 A.2d 42, 45 (N.J. Super. Ct. 2007). “Only in very rare
instances should a court upset the legislative scheme of loss allocation and permit a common law
cause of action.” City Check Cashing, Inc. v. Mfrs. Hanover Trust Co., 764 A.2d 411, 416 (N.J. 2001)
(quoting Bank Polska Kasa Opieki v. Pamrapo Sav. Bank, 909 F. Supp. 948, 956 (D.N.J. 1995)).
Thus, “unless the facts establish a special relationship between the parties created by agreement,
undertaking or contact, that gives rise to a duty, the sole remedies available are those provided in the
[UCC].” City Check Cashing, Inc. v. Mfrs. Hanover Trust Co., 764 A.2d 411, 416 (N.J. 2001).
Under New Jersey law, “[t]he standard deposit agreement between a bank and a depositor
does not create a special relationship.” Estate of Paley v. Bank of Am., No. A-4391-07T3, 2011 WL
1598974, at *12 (N.J. Super. Ct. App. Div. Apr. 29, 2011) (citing Globe Motor Car Co. v. First Fid.
Bank, 641 A.2d 1136 (Super. Ct. Law Div. 1993), aff’d, 677 A.2d 794 (Super. Ct. App. Div. 1996)).
Additionally, the relationship between a bank and a depositor is that of a creditor-debtor. Estate of
Paley v. Bank of Am., No. A-4391-07T3, 2011 WL 1598974, at * 12 (N.J. Super. Ct. App. Div. Apr.
29, 2011) (citing Klemm v. Labor Coop. Nat’l Bank, 187 A. 640 (N.J. 1936). A creditor-debtor
relationship will rarely give rise to a fiduciary duty because the positions of the creditor and the debtor
are essentially adversarial. See Paradise Hotel Corp. v. Bank of Nova Scotia, 842 F.2d 47, 53 (3d
Cir. 1988); see also United Jersey Bank v. Kensey, 704 A.2d 38, 44 (N.J. Super. Ct. App. Div. 1997)
(noting that “there is no presumed fiduciary relationship between a bank and its customer” because
10
“their respective positions are essentially adversarial”). As such, common law claims cannot proceed
where they would “contravene the provisions of UCC Article 4.” ADS Ass’n Grp., Inc., 99 A.3d at
358.
The scope of Article 4A encompasses the very situation alleged by Plaintiff in which “[a]
payment order purporting to be that of Customer is received by Receiving Bank but the order was
fraudulently transmitted by a person who had no authority to act for Customer.” See N.J.S.A. §
12A:4A-203 cmt. 2. Plaintiff’s attempt to convert TD’s conduct (the investigation of the transfers
upon receiving a police report and the attempt to process a reversal of the transfers) into a special
undertaking giving rise to a special relationship is thus, misplaced. Indeed, the comments to the UCC
assume that such an investigation will occur. See N.J.S.A. § 12A:4A-203 cmt. 5 (“Because of bank
regulation requirements, in this kind of case there will always be a criminal investigation as well as
an internal investigation of the bank to determine the probable explanation for the breach of
security.”).
Further, Plaintiff does not identify any particular facts, or case law for that matter, to show
that TD was acting on behalf of anyone else other than for its own self-interest when it undertook
those actions. (See Pl. Opp.). After all, TD did not act until it had received a police report. And
importantly, banks like TD are subject to various regulatory duties including the requirement to
prepare Suspicious Activity Reports in connection with suspicious transactions and suspected
violations of federal banking law. See, e.g., 12 C.F.R. § 21.11. Additionally, section 12A:4A-204(a)
places the risk of loss on the bank when there is a violation of section 12A:4A-202 or section 12A:4A203. N.J.S.A. § 12A:4A-204 cmt. 1 (“Subsection (a) of Section 4A-204 states that the bank must
recredit the account or refund payment to the extent the bank is not entitled to enforce payment.”).
Therefore, Plaintiff’s allegations are insufficient to overcome the “heavy presumption” that a
creditor-debtor relationship like the one at issue here does not give rise to a special relationship.
11
Galayda v. Wachovia Mortg., FSB, No. 10-1065, 2010 WL 5392743, at *17 (D.N.J. Dec. 22, 2010).
Plainly, Article 4A provides a comprehensive remedy to address Plaintiff’s injury arising out of the
alleged fraudulent transfers, and to allow Plaintiff’s common law claims to go forward in the absent
of such a special relationship would be to allow Plaintiff to sidestep the “careful and delicate” scheme
of loss allocation contemplated and expressed by the legislature. See ADS Assocs. Grp., Inc., 99 A.3d
at 361 (“In Article 4A, the Legislature has treated electronic funds transfers as a distinct category of
transactions governed by special rules, and has carefully limited the liability of banks to refund money
transferred in accordance with a payment order that the customer has not authorized.”); Girard Bank
v. Mount Holly State Bank, 474 F.Supp. 1225, 1239 (D.N.J. 1979) (“Courts should be hesitant to
improvise new remedies outside the already intricate scheme of Articles 3 and 4”); see also New
Jersey Bank, N.A. v. Bradford Securities Operations, Inc., 690 F.2d 339, 345 (3d Cir. 1982) (holding
that a common-law tort action is barred where Article 8 provides a “comprehensive remedy”).
For these reasons, the Court dismisses Counts II and III with prejudice.
IV.
CONCLUSION
For the foregoing reasons, the Court DENIES TD’s motion to dismiss as to Count I and
GRANTS TD’s motion to dismiss as to Counts II and III with prejudice. An appropriate Order
accompanies this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.
12
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