Bibicheff v. Chase Bank USA, N.A. et al

Filing 75

ORDER granting 71 Motion to Dismiss for Failure to State a Claim: PayPal's motion to dismiss pursuant to Rule 12(b)(6) is granted with prejudice. The Clerk of Court is directed to enter judgment and close the case. See attached Order for details. Ordered by Judge Denis R. Hurley on 5/4/2020. (Hoon, Megha)

Case 2:17-cv-04679-DRH-AYS Document 75 Filed 05/04/20 Page 1 of 13 PageID #: 362

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------X
KARINA BIBICHEFF,
MEMORANDUM AND ORDER
2:17-cv-4679 (DRH)(AYS)

Plaintiff,
- against PAYPAL, INC.,
Defendant.
-------------------------------------------------------X
APPEARANCES
For Plaintiff:
Daniel J. Reiter, Esq.
30 Wall Street, 8th Floor (Suite 820)
New York, NY 10005
By:
Daniel J. Reiter, Esq.
For Defendant:
Mayer Brown LLP
1999 K Street NW
Washington, DC 20006
By:
Archis A. Parasharami, Esq.
Mayer Brown LLP
1221 Avenue of the Americas
New York, NY 10020
By:
Ilana D. Cohen, Esq.
HURLEY, Senior District Judge:
INTRODUCTION

Plaintiff Karina Bibicheff (“Plaintiff”) brought this action against Defendants Chase
Bank USA, N.A. (“Chase”) and PayPal, Inc. (“PayPal”), asserting violations of the Truth in
Lending Act (“TILA”), negligence, breach of the implied covenant of good faith and fair
dealing, and failure to protect her from unauthorized transactions pursuant to New York General
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Business Law § 349. Defendant Chase was subsequently dismissed from this action. Plaintiff
amended her complaint against remaining defendant PayPal, asserting a violation of the New
York General Business Law § 349, breach of the implied covenant of good faith and fair dealing,
negligence, negligent infliction of emotional distress, and unjust enrichment. Presently before
the Court is PayPal’s motion to dismiss pursuant to Fed. R. Civ. P (“Rule”) 12(b)(6) for failure to
state a claim. For the reasons discussed below, PayPal’s motion to dismiss is granted.
BACKGROUND
The following relevant facts come from the Amended Complaint (“Am. Compl.”) and are
assumed true for purposes of this motion.
This dispute arises out of allegedly fraudulent charges made with Plaintiff’s credit cards
through PayPal. Plaintiff owns and operates a “medical spa” in Old Brookville, New York.
(Am. Compl. [DE 62] ¶ 5.) Plaintiff held eighteen credit cards, a combination of Visa, Master
Card, and American Express cards, issued by various banks, including former defendant Chase.
(Id. ¶¶ 7-8.) These credit cards were used for allegedly unauthorized transactions through twelve
PayPal accounts “that the identity thief fraudulently created in Plaintiff’s name and/or business
name and/or social security number, without her knowledge or approval (‘Fraudulent PayPal
Accounts’).” (Id. ¶ 9.) The checking account linked to two “currently known Fraudulent PayPal
Accounts” does not belong to Plaintiff, and Plaintiff suspects that the checking account belongs
to “the identity thief.” (Id. ¶¶ 26-28.) “Upon information and belief, the unauthorized
transactions through all Fraudulent PayPal Accounts were paid from those Fraudulent PayPal
Accounts into the linked checking account.” (Id. ¶ 27.)
The unauthorized transactions through the Fraudulent PayPal Accounts occurred over a
seven-year period from approximately August 12, 2009 through August 23, 2016 and totaled

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$524,385.86. (Id. ¶ 11.) Though the fraudulent PayPal transactions listed on Plaintiff’s credit
card statements appeared “legitimate and relating to her business,” the transactions were
fraudulent and unauthorized. (Id. ¶ 13.) Neither Plaintiff nor her business received any benefit
for these transactions. (Id.)
Plaintiff suspects that her former office manager created the Fraudulent PayPal accounts
and “initiated the unauthorized fraudulent transactions using [Plaintiff’s] credit cards” without
her knowledge, authority, or consent. (Id. ¶¶ 19-21.) On September 9, 2016, Plaintiff filed a
police report “expressing her belief that her former office manager is responsible for the
unauthorized transactions.” (Id. ¶ 22.) The police investigation is ongoing. (Id.)
On or about August 31, 2016, Plaintiff filed a complaint with PayPal regarding the
unauthorized transactions and requested information pertaining to her PayPal Accounts. (Id. ¶
16.) PayPal did not refund the transactions made through the Fraudulent PayPal Accounts and
did not provide any “substantive information related to the nature of the transactions and/or the
merchants associated with the transactions” at the time. (Id. ¶ 17.)
Plaintiff did not become aware of the “full extent of – nor the fraudulent nature” of the
transactions until March 2019 when PayPal provided Plaintiff a list of accounts bearing her
name, business name, or social security number and the total amount of transactions for each
account. (Id. ¶ 18.) PayPal has not provided information about the specific transactions, such as
the goods or services rendered, or which credit card was used for which transaction. (Id. ¶ 24.)
PayPal, “citing that the Fraudulent PayPal Accounts having already been closed…insists that the
company is not authorized to give [Plaintiff] this information.” (Id. ¶ 25.) Plaintiff “lacks
knowledge as to what goods and/or services, if any, were actually purchased by the majority of
the unauthorized transactions.” (Id. ¶ 23.) Plaintiff alleges, upon information and belief, that

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PayPal allows its users to title transactions as they wish. (Id. ¶ 13.) As a result, a PayPal
account user is not required to accurately title the goods and/or services remitted in a transaction.
(Id.)
PayPal makes certain representations on its website relevant to the conduct Plaintiff
complains of. These representations, which appeared on PayPal’s website at the time Plaintiff
reported the allegedly fraudulent activity to PayPal, are:
•

“Remember, you’re 100% protected against unauthorized transactions sent from your
account;”

•

“Once your claim has been filed, we’ll investigate and do our best to resolve the
issue. Any transaction found to be in error or unauthorized will be refunded;”

•

“If you report an unauthorized transaction problem within 60 days from the
transaction date, we’ll investigate right away. You aren’t liable for unauthorized
purchases made from your account.”

(Id. ¶ 14.)
PayPal also “maintains the following representations on its website:”
•

“Every transaction is monitored and analyzed within milliseconds to identify and help
prevent fraud before it occurs.”

•

“Every transaction is heavily guarded behind our advanced encryption. We monitor
transactions 24/7 to help prevent fraud and identity theft.”

•

“We provide the expertise and tools to guide you through the process of resolving a
chargeback, be it related to an unauthorized transaction or an item not received.”

•

“$0 liability…If you’re charged for something you didn’t purchase, tell us. We’ll
secure your account and investigate.”
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(collectively, the “PayPal Representations”) (Id. ¶ 15.)
“On information and belief, PayPal takes a fee of 2.9%...per merchant transaction, in
addition to $0.30…per sale.” (Id. ¶ 29.)
DISCUSSION
I.

The Parties’ Arguments
Plaintiff brings seven causes of action against PayPal: (1) violation of New York General

Business Law § 349; (2) negligent failure to discover and notify Plaintiff of the suspicious
accounts and transactions made with her information; (3) unjust enrichment to PayPal for
benefitting from the Fraudulent PayPal Accounts; (4) negligent infliction of emotional distress
for failure to discover and notify Plaintiff of the suspicious accounts and transactions made with
her information; (5) declaratory judgment that Plaintiff is not liable for any and all unauthorized
charges in excess of $50; (6) breach of implied covenant of good faith and fair dealing for failure
to discover and notify Plaintiff of the suspicious accounts and transactions made with her
information, despite representations in PayPal’s User Agreement; and (7) punitive damages for
PayPal’s complicity in the creation and unauthorized use of Plaintiff’s Fraudulent PayPal
Accounts. (Am. Compl. ¶¶ 30–69.)
PayPal argues in its papers that Plaintiff’s claims fail because she has not pled causation
for the New York General Business Law claim; she has not pled that PayPal owed her a duty and
that the economic loss doctrine bar her negligence claims; she has not shown a contractual
relationship with PayPal; and that she has not pled that she paid any fees to PayPal. (Def.’s Mem.
in Supp. [DE 72].)

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II.

Legal Standard
In deciding a motion to dismiss under Rule 12(b)(6), a court should “draw all reasonable

inferences in Plaintiff[’s] favor, assume all well-pleaded factual allegations to be true, and
determine whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins.
Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted). The plausibility
standard is guided by two principles. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007)); accord Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir.
2009).
First, the principle that a court must accept all allegations as true is inapplicable to legal
conclusions. Thus, “threadbare recitals of the elements of a cause of action supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Although “legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.” Id. at
679. A plaintiff must provide facts sufficient to allow each named defendant to have a fair
understanding of what the plaintiff is complaining about and to know whether there is a legal
basis for recovery. See Twombly, 550 U.S. at 555.
Second, only complaints that state a “plausible claim for relief” can survive a motion to
dismiss. Iqbal, 556 U.S. at 679. “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. The plausibility standard is not akin to a ‘probability requirement,’ but asks
for more than a sheer possibility that defendant acted unlawfully. Where a complaint pleads
facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line’ between
possibility and plausibility of 'entitlement to relief.’” Id. at 678 (quoting Twombly, 550 U.S. at
556-57) (internal citations omitted); see In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.

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2007). Determining whether a complaint plausibly states a claim for relief is “a context specific
task that requires the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679; accord Harris, 572 F.3d at 72.
III.

New York General Business Law § 349 Claim
a. New York General Business Law § 349
New York General Business Law (“GBL”) § 349 prohibits “[d]eceptive acts or practices

in the conduct of any business, trade, or commerce or in the furnishing of any service” in New
York. N.Y. Gen. Bus. Law § 349(a). The statute creates a private right of action for anyone
injured from a violation of the section. Id. § 349(h).
To state a claim under Section 349, “Plaintiff must adequately allege three elements: (1)
the challenged act or practice was consumer-oriented; (2) the act or practice was misleading in a
material way; and (3) the plaintiff suffered injury as a result of the deceptive act.” Dash v.
Seagate Tech. (U.S.) Holdings, Inc., 27 F. Supp. 3d 357, 360 (E.D.N.Y. 2014) (quoting Stutman
v. Chemical Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 (2000)) (internal
quotation marks omitted).
b. The Motion to Dismiss Plaintiff’s GBL Claim is Granted
Plaintiff contends that the PayPal Representations are deceptive. (Pl.’s Mem. in Opp.
[ECF No. 73] at 11.) Defendant argues that Plaintiff’s claim fails because she has not pled
causation, and that she cannot since she did not purchase any products or services from PayPal.
(Def.’s Mem. in Supp. at 3.) Furthermore, Defendant argues that PayPal’s purported
misrepresentations could not have caused her injuries, which had “already been caused by her
former office manager’s” actions at the time she saw the representations on PayPal’s website.

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(Id. at 4.) Plaintiff, citing Stutman, counters that reliance is distinct from causation, and that she
does not need to allege reliance for her claim to survive. (Pl.’s Mem. in Opp. at 13-14.)
The Court agrees with Defendant that Plaintiff has not shown causation. As Defendant
points out, “[i]f the plaintiff did not see any of these statements, they could not have been the
cause of [her] injury, there being no connection between the deceptive act and the plaintiff’s
injury.” Gale v. Int’l Bus. Machs. Corp., 9 A.D.3d 446, 447 (2d Dep’t 2004). Here, Plaintiff did
not see the PayPal Representations until after the fraudulent activity and resulting harm had
occurred. Thus, Plaintiff has failed to state a claim under GBL 349 and Defendant’s motion to
dismiss on that basis is granted.
IV.

Negligence Claim
a. Negligence
“To sustain a cause of action for negligence under New York law, a plaintiff must prove

that (1) defendant owed plaintiff a duty of care; (2) defendant breached this duty; (3) plaintiff
suffered an injury; and (4) defendant’s breach was the direct and proximate cause of the injury.”
Paul v. Bank of America Corp., 2011 WL 684083, at *3 (E.D.N.Y. Feb. 16, 2011) (citing
Colorado Capital v. Owens, 227 F.R.D. 181, 187 (E.D.N.Y. 2005)). “There is a longstanding
New York rule, however, that economic loss is not recoverable under a theory of negligence.”
Labajo v. Best Buy Stores, L.P., 478 F. Supp. 2d 523, 532 (S.D.N.Y. 2007) (citing Dooner v.
Keefe, Bruyette & Woods, Inc., 157 F. Supp. 2d 265, 285 (S.D.N.Y. 2001)). Thus, if a plaintiff
does not allege “personal injury or property damage” and her allegations are “purely limited to
economic loss . . . her remedies are limited and she may not sue in negligence.” Id.

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b. The Motion to Dismiss Plaintiff’s Negligence Claim is Granted
Defendant argues that Plaintiff’s negligence claim should be dismissed because she has
only alleged economic loss, which is not recoverable under a theory of negligence. (Def.’s
Mem. in Supp. at 5.) Plaintiff argues that there is an exception to the economic loss doctrine that
allows “a cause of action in negligence, a tort, to be brought for economic loss where the said
cause is not contractually based.” (Pl.’s Mem. in Opp. at 15.) The case law that Plaintiff cites to
provides an exception to the economic loss doctrine where a “special relationship” exists that
“requires the defendant to protect against the risk of harm to plaintiff.” See Cornelia Fifth Ave.,
LLC v. Canizales, 2017 WL 1034644, at *2-3 (S.D.N.Y. 2017) (citing 532 Madison Ave.
Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280, 289 (2001)).
Defendant also argues that Plaintiff’s claim fails because she has not alleged that PayPal
owed her a duty, let alone that it breached that duty. (Def.’s Mem. in Supp. at 5.) Defendant
acknowledges that the case law recognizes an exception in tort law to the general rule that no
duty is imposed “to control the conduct of third persons to prevent them from causing injury to
others,” which is the situation here. Purdy v. Pub. Adm’r of Westchester Cty., 72 N.Y.2d 1, 8
(1988.) This exception, as with the exception to the economic loss doctrine, exists where there is
a special relationship, either between the defendant and the plaintiff or the defendant and the
third person whose actions expose plaintiff to harm. Id. Thus, the central question at this
juncture is whether Plaintiff has pled a special relationship, either in the context of the economic
loss doctrine or the negligence duty analysis, such that PayPal owed Plaintiff a duty. The answer
to that question is no.
As a preliminary matter, there is no dispute that Plaintiff has not pled that PayPal owed
her a duty. Plaintiff’s counsel admits as much: “The undersigned respectfully submits that he

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can find no precedent on the subject of whether a company that offers the same or similar
services of PayPal owes such a duty pursuant to New York law.” (Pl.’s Mem. in Opp. at 16.)
Instead, Plaintiff argues in its opposition brief that it is “cognizable” that this Court could
recognize such a duty. In an effort to prove her point, Plaintiff cites to cases that are inapplicable
to the present situation.
Relevant case law, as explained by Defendant, makes clear that New York courts have
declined to recognize a duty in similar circumstances, and Plaintiff does not distinguish or
otherwise dispute those cases. For example, Defendant cites to Polzer v. TRW, Inc., where the
Appellate Division affirmed the dismissal of a negligence claim against two credit card issuers
for failing to detect that an imposter had opened credit cards in the plaintiffs’ name. (Def.’s
Mem. in Supp. at 6 (citing Polzer v. TRW, Inc., 256 A.D.2d 248 (1998)).) The court in Polzer
explained that “New York does not recognize a cause of action for ‘negligent enablement of
impostor fraud,’ and that plaintiffs otherwise failed to state a cause of action in negligence,
because [defendants] had no special relationship either with the impostor who stole the plaintiffs’
credit information and fraudulently obtained credit cards, or with plaintiffs, with whom they
stood simply in a creditor/debtor relationship.” Polzer, 256 A.D.2d at 248. Similarly, PayPal
had no special relationship with either Plaintiff or whoever stole her information to create the
Fraudulent PayPal Accounts, and it therefore did not owe Plaintiff any duty.
Accordingly, Defendant’s motion to dismiss the negligence claim is granted.
V.

Breach of Implied Covenant of Good Faith and Fair Dealing Claim
a. Implied Covenant of Good Faith and Fair Dealing
“Under New York law, ‘implicit in every contract is a covenant of good faith and fair

dealing . . . which encompasses any promises that a reasonable promisee would understand to be

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included.’” Spinelli v. Nat’l Football League, 903 F.3d 185, 205 (2d Cir. 2018) (quoting New
York Univ. Cont’l Ins. Co., 87 N.Y.2d 308, 318 (1995)). “Where there is no agreement,
however, there can be no implied duty to act.” Mecca v. Lennon, 2018 WL 3202067, at *2
(E.D.N.Y. Mar. 27, 2018) (citing Banco Espirito Santo de Investimiento, S.A. v. Citibank, N.A.,
2003 WL 23018888, at *5 (S.D.N.Y. Dec. 22, 2003)).
b. The Motion to Dismiss Plaintiff’s Implied Covenant of Good Faith and Fair
Dealing Claim is Granted
Defendant argues that Plaintiff’s claim for a breach of the implied covenant of good faith
and fair dealing fails because there was no contract between the parties. (Def.’s Mem. in Supp.
at 9.) Plaintiff does not dispute this, and instead asserts that “[w]here there is a bona fide dispute
as to the existence of a contract, or where the contract does not cover the dispute in issue, a
plaintiff may proceed upon a theory of quasi contract…” (Pl.’s Mem. in Opp. at 22 (citing
Zuccarini v. Ziff-Davis Media, Inc., 306 A.D.2d 404, 405, 762 N.Y.S.2d 621, 622 (2003)).) She
does not, however, argue that there is a bona fide dispute as to the existence of a contract, but
rather that her claim should not be dismissed because “it could be won under a theory of quasicontract.” (Pl.’s Mem. in Opp. at 22.) Beyond this conclusory statement, she offers no argument
in support of this quasi-contract theory.
Even if there were a contract between the parties, Plaintiff’s claim fails for the same
reasons that this claim failed against Chase. As discussed in that decision, any investigation into
the Fraudulent PayPal Accounts would be a discretionary act, and Plaintiff has not alleged that
PayPal acted arbitrarily or irrationally. See Bibicheff v. Chase Bank USA, N.A., 2018 WL
4636817 at *4 (E.D.N.Y. Sept. 26, 2018) (citing Spinelli, 903 F.3d at 205). Accordingly,
Plaintiff has not pled a claim for breach of the implied covenant of good faith and fair dealing,
and Defendant’s motion to dismiss that claim is granted.
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VI.

Unjust Enrichment Claim
a. Unjust Enrichment
“To state a claim for unjust enrichment in New York, a plaintiff must allege that (1)

defendant was enriched (2) the enrichment was at plaintiff’s expense; and (3) the circumstances
were such that equity and good conscience require defendants to make restitution.” Labajo, 478
F. Supp. 2d at 531. If a plaintiff did not pay the fees in question, the plaintiff cannot recover
under an unjust enrichment theory. Mueller v. Michael Janssen Gallery Pte. Ltd., 225 F. Supp.
3d 201, 209 (S.D.N.Y. 2016).
b. The Motion to Dismiss Plaintiff’s Unjust Enrichment Claim is Granted
Defendant argues that Plaintiff has not pled a claim for unjust enrichment because she did
not pay any fees to PayPal. (Def.’s Mem. in Supp. at 12.) Plaintiff alleged in her complaint that
PayPal collects a fee of 2.9% per merchant transaction, in addition to $0.30 per sale. Defendant,
citing to PayPal’s website, argues that this merchant fee is paid by sellers rather than buyers. (Id.
at 12 n.3 (citing PayPal Fees, http://www.paypal.com/us/webapps/mpp/paypal-fees.)) 1 Because
Plaintiff alleges the Fraudulent PayPal Accounts were used to purchase goods or services rather
than provide them, Plaintiff would not have paid the merchant fees to PayPal. (Id. at 12.)
Plaintiff does not dispute that the fees collected by PayPal are paid by the seller rather
than buyer. Nor does Plaintiff assert any other possible enrichment to PayPal, let alone one at
her expense. Instead, Plaintiff argues that she has “adequately allege[d] that Defendant could
have benefited in a myriad of ways, of which Plaintiff cannot demonstrate unless [she] is given
the opportunity to perform discovery.” (Pl.’s Mem. in Supp. at 24.) Plaintiff does not so much
as provide an example of what those “myriad of ways” might possibly be. As noted above, the
The Court may take judicial notice of PayPal’s website. Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC,
127 F. Supp. 3d 156, 167 (S.D.N.Y. 2015).

1

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plausibility standard required to survive a motion to dismiss requires “more than a sheer
possibility that defendant acted unlawfully.” Iqbal, 556 U.S. at 678. In the absence of any
allegation as to how PayPal was enriched at Plaintiff’s expense, Plaintiff’s claim for unjust
enrichment fails, and Defendant’s motion to dismiss on that basis is granted.
VII.

Remaining Claims
Plaintiff does not object to dismissal of her claims for negligent infliction of emotional

distress, declaratory judgment, or punitive damages. Plaintiff does, however, oppose dismissal
of punitive damages as a remedy. Because Plaintiff’s claims have all been dismissed, the issue
of damages is rendered moot.
VIII.

Leave to Amend
Plaintiff requests leave to amend “any matters that can be cured with an amendment to

the pleading.” (Pl.’s Mem. in Opp. at 26.) Even on a liberal reading of the facts and causes of
action alleged, any further pleading would be futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000).
CONCLUSION
For the foregoing reasons, PayPal’s motion to dismiss pursuant to Rule 12(b)(6) is
granted with prejudice. The Clerk of Court is directed to enter judgment and close the case.
SO ORDERED.
Dated: Central Islip, New York
May 4, 2020

s/ Denis R. Hurley
Denis R. Hurley
United States District Judge

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