Galper v. JP Morgan Chase Bank N.A.

Filing 36

OPINION re: 19 FIRST MOTION to Dismiss the Amended Complaint, or, in the alternative, to Strike Certain Allegations, filed by JP Morgan Chase Bank N.A. Given the reasoning above, Defendant's motion to dismiss is granted, and motion to strike is denied as moot. The AC is dismissed with leave granted to replead within 20 days. It is so ordered. (Signed by Judge Robert W. Sweet on 3/14/2014) (ja) (Main Document 36 replaced on 3/18/2014) (ja).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------x
YELENA GALPER,
Plaintiff,

13 Civ. 3449
OPINION

-againstJPMORGAN CHASE, N.A.,
Defendant.

----- ---- --- ------------- ---------x
=
A P PEA RAN C E S:
Attorne

for Plaintiff

CREIZMAN LLC

565
fth Avenue, Fl. 7

New York, NY 10017

By:
Eric M. Creizman, Esq.

Att

for Defendant

LEVI LUBARSKY & FEIGENBAUM LLP
1185 Avenue of the Americas, 17th Floor
New York, NY 10036
By: Alan H. Scheiner, Esq.
Andrea Likwornik Weiss, Esq.

=i\

Sweet, D.J.

Defendant JPMorgan Chase Bank, N.A.

("Chase U or the

"Defendant U) has moved pursuant to Federal Rules of Civil
Procedure 9(b} and 12(b} (6) to dismiss the Amended Complaint
("AC U) of Yelena Galper ("Galperu or the"
the alternative, to strike certa

aintiffU), or, in

allegations pursuant to Fed.

R. Civ. P. 12(f). Based upon the conclusions set forth below,
the motion to dismiss is granted, and the AC is dismissed with
leave granted to replead within 20 days.

Prior Proceedings

Galper filed her complaint on May 22, 2013. Chase
moved to dismiss the initial complaint on June 28, 2013. Galper
filed her AC on July 9, 2013. The instant motion to dismiss the
AC was heard and marked fully submitted on November 6, 2013.

Because this is a motion to dismiss under Fed. R. Civ.
P. 12(b) (6), the

llowing facts, which this Court assumes to be

true, are drawn from the AC.

See Tellabs

Inc. v.

551 U.S. 308, 322, 127 S. Ct. 2499, 168 L. Ed.

2d 179 (2007)
§

("[F]aced with a Rule 12(b) (6) motion to di

ss a

10(b) action, courts must, as with any motion to dismiss

r

ilure to plead a claim on which relief can be granted, accept
the complaint as true.").

all factual allegations

ity the

The AC alleges three causes of action: i

in violation of N.Y. Gen. Bus. Law Section 380 s, aiding and
the

abetting ident
allegat

ns conce

and conversion. The AC contains

ng the activities of three Chase employees

from 2008-2011 in connection with a money laundering scheme,
members of which have been prosecuted and convicted on
charges in t

Eastern District of New York. AC

~~

ony

1, 17. The

members of the money laundering scheme concealed the proceeds of
a Medicare fraud perpetrated by owners and control

rs of three

health care clinics: Bay Medical Care, SZS Medical Care, and SVS
Wellcare Medical (the "Clinics

fl
).

rd.

~

16. Members of the money

undering scheme provided a service to the owners and
controllers of the Clinics by creating phony corporations to
which the Clinic owners and controllers could write checks, thus
concealing the illicit proceeds of their fraud.

rd.

money laundering conspirators would then withdraw ca
cashier's checks from the

~

17. The
or

k accounts they opened for the

phony corporations and return the cash to the Clinic owners
2

after taking a fee for themselves. Id. In September 2009, three
accounts in the name of phony corporations were opened at Chase
that falsely identified Galper as signatory and president of the
corporations. Id.

~

18. These accounts were opened by members of

the money laundering scheme with the assistance of a Chase
branch manager and business account manager, who allegedly
opened the accounts without Galper's permission or knowledge.
rd. The members of the money laundering scheme and the Chase
employees also used a dormant personal checking account of
Galper's to make personal, lavish expenditures for the members
of the money laundering scheme. rd.

~~

18, 19. The branch

manager and a teller permitted a member of the money laundering
scheme to make large cashier's check withdrawals using Galper's
ident

y and forged bank records to fals

made the withdrawals. Id.
conspiracy. rd.

~~

~

y reflect that Galper

22. The AC further details the

19-26.

The money laundering conspirators provided the Chase
employees with money and other things of value in exchange for
their unlawful se

s. rd.

~

4. Additionally, by ostensibly

bringing in business and bank fees through the opening and
operation of the fraudulent business accounts, the Chase
employees improved their stature and compensation at Chase. rd.

3

Oftentimes the money-laundering accounts opened in Galper's name
would become overdrawn, or checks written to those accounts
would bounce. Id.

~

6. When the money laundering conspiracy was

discovered, the Government closed the fraudulent accounts. Id.
Since Galper was the sole signatory on the accounts, the
Government investigated her, and despite her denial of
involvement, Galper was indicted. Id. The bounced checks, closed
accounts, and government investigation triggered reports to
ChexSystems and Early Warning Systems, companies which collect
data on account holders and he
customers. Id.

~~

institutions identify risky

7-9.

As a result of the adverse reports, Galper's checking
account at HSBC was closed, as was the account she opened in
response to the first account's closing. Id.
2010, Chase also clo

~

10. In February

a bank account of Galper's 12-year old

son, for which she was the custodian. Id. In addition, the
unlawful activity captured the attention of law enforcement, who
interviewed and investigated Galper, resulting in an ultimately
unsuccess

1 federal criminal prosecution. Id.

~

27. After a

seven week trial, a jury acquitted Galper of all charges. Id.

4

Galper seeks $10 million in compensatory and punitive
damages from Chase. AC

~

r actual damages

11. She claims that
~

include financial and emotional damages, id.

32, including

s and costs associated with defending the federal

attorneys'

criminal prosecution against her,

id.

~

14.

The Applicable Standards

On a motion to dismiss pursuant to Rule 12 (b) (6),
factual

allegations

in the complaint

are

accepted as

true,

all inferences are drawn in favor of the pleader. Mills v.
Molecular Co

.,12 F.3d 1170,1174

(2d Cir.

1993).

all
and

Polar

"'The issue

is not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the claims
. . '" Villager
378

(2d Cir.

Pond,

1995)

Inc.

(quoting

v.

Town of

Scheuer

v.

Darien,
Rhodes,

236, 94 S. Ct. 1683, 40 L. Ed. 2 d 90

dismiss

F.
U.S.

416

375,
232,

to

Rule

( 1974 ) ) .

survive

56

To
12 (b) (6),

"a

a

motion

complaint must

accepted as true,

to

pursuant

contain sufficient

factual

matter,

'state a claim to relief that is plausible

on its face.'" Ashcroft v.
1937, 1949, 173 L.

to

I

. 2d 868

1,

556 U.S.

(2009)
5

662,

678,

129 S.

(quoting Bell Atl. Co

Ct.
. v.

Twombl

550 U.S.

(2007)).

Plaintiffs

their

claims

across

550

Twombl

544,

U.S.

570,

must

allege

the
at

127 S.

line

570.

Ct.

1955,

sufficient

from

Though

facts

conceivable
the

Court

factual allegations of a complaint as true,
accept

as

true

a

legal
129

allegation.'"

conclusion

S.

Ct.

at

167 L.
to
to

2d 929

"nudge [
plausible."

must

accept

the

it is "'not bound to

couched

1950

Ed.

as

(quoting

a

factual

Twombl

550

U.S. at 555).

Rule
"state[d]

with particular

ATSI

Commc'ns,

Cir.

2007).

spe

fy

Inc.

Shaar

statements
(2)

Fed.
Fund,

averments
R.

Civ.

Ltd.,

statements

that

the

were

made,

and

(4)

Rombach v.

of

493

see

F.3d

87,99

a plaintiff must:

(3)

contends

why

the

or speculat i ve allegat ions,

F.3d 164,

170

(2d

(2d
"(1)
were

r.

General,

unsupported by specific

facts, are legally insufficient. Id. at 176.

The First, Second And Third Causes of Action Are Dismissed

6

also

statements

(internal quotation marks and citation omitted).

conclusory,

be

state where and when

explain
355

fraud

9(b)i

P.

plaintiff

identify the speaker,

were fraudulent."
2004)

v.

y."

that

To satisfy this requirement,

the

fraudulent,
the

requires

9 (b)

The first cause of action is based on state law that
concerns the furnishing of information to credit

rting

agencies. Such claims are preempted by the federal Fair Credit
Reporting Act ("FCRA"). See 15 U.S.C. § 1681t(b) (1) (F)
requirement or prohibition may be impos

("No

under the laws of any

with respect to any subject matter regulat

State

under

section 1681s 2."); 15 U.S.C. § 1681s-2(a) (1) (A)
person shall not furnish any information relating to a consumer
to any consumer reporting agency if the person knows or has
reasonable cause to believe the information is inaccurate.");
Chase Bank
Cir. 2011)

N.A.

665 F.3d 45, 47-48

(2nd

(statutory and common law claims grounded upon bank's

lse reporting to credit reporting agencies are preempted); see
also Islam v. Option One Mortgage Corp., 432 F. Supp. 2d 181,
187-89, 194

(D. Mass. 2006)

(holding that federal FCRA preempts

claims under Massachusetts fair credit reporting statute and for
common law negligence) .

The AC alleges that false reports were made to two
purported "consumer reporting agencies," ChexSystems and Early
Warning Systems, AC

<j{

28, "

lsely associating," id., Galper

with, among other things: bounced checks on the Corporate
Accounts; the closure of the Corporate Accounts; and unspecified
7

allegations of fraud and reports of the criminal prosecution,
.

~~

7-10, 28, 31, 35, and, as a result of these reports, her

son's bank account and two of her own personal bank accounts
were closed, id.

~~

10, 28.

aintiff's First and Second Causes of Action,
"Identi

the

in Violation of" N.Y. Gen. Bus. Law

"aiding and abetting" the same, AC

~~

§

r

380-s and

30, 35, are governed

by N.Y. Gen. Bus. Law § 380-1. Section 380-1 only permits cla
for

olations of § 380-s that "resulted in t

provision to a consumer reporting agency of in
would otherwise not have been transmitt

transmission or
rmation that

or provided

II

N.Y. Gen. Bus. Law § 380-1 (2013). The state statute requires
allegation of facts that trigger federal preemption: that
identity the

result

in misleading information being

furnished to credit reporting agencies, thus causing adverse
credit reports. Ga

's Thi

Cause of Action, for

"Conversion," relies on the same allegations as the ident

y

theft and aiding and abetting claims, and is therefore also
preempted. See AC at 14,

~

37

(Thi

Cause of Action

"realleg[ing] each and every prior allegation herein").

8

--------------_

....

_ - _...._-_..

_---­

Congress enacted "broad and explicit" preemption of
the entire "subject matter" governed by specific sections of the
federal statute, including § 1681s-2, which governs the
furnishing of information to credit reporting agencies. See
Dickman v. Verizon Commc'ns,
(E.D.N.Y. 2012)

Inc., 876 F. Supp. 2d 166, 174-75

(claim under New York's Gen. Bus. Law

unfair business practices preempt

§

349 for

where it concerned

furnishing incorrect information to credit agencies); Okocha v.
HSBC Bank USA, _N.A., 700 F. Supp. 2d 369, 375, 376 (S.D.N.Y.

F.3d 103, 105-06 (2d

r. 2009)

(holding that common law claims

of misappropriation of trade secrets, unfair competition, and
unjust enrichment concerning the "prescreening" of consumer
credit information were properly dismiss

because they were

preempted under Sections 1681t(B) (1) (A) and 1681b).

Although generally preserving state law so long as it
is not "inconsistent" with federal law, 15 U.S.C. § 1681t(a),
the FCRA provides an exception to that preservation, i.e., it
provides for express preemption, as follows:

(b) General exceptions
No requirement or prohibition may be imposed under the
laws of any State­
9

(1) with respect to any subject matter regulated
under­

(F) section 1681s-2 of this tit , relating
to the responsibilit s of persons who
furnish information to consumer reporting
agencies .

15 u.s.c.

§

1681t (b) (1) (F). Section 1681s 2 sets forth a

carefully crafted system of obligations and prohibitions to
regulate the furnishing of information about consumers to credit
reporting agencies. Among other things, the statute prohibits
the knowing furnishing of false information to credit reporting
agencies and requires certain corrective measures once notice of
a consumer dispute is received from a credit reporting agency.
15 u.s.c.

1681s 2(a) (1)

&

(b) (1); see Markovska

can

----------~--------------

867 F. Supp. 2d 340, 343-44 (E.D.N.Y.

Home
2012)

§

(describing separate provisions governing conduct

fore

and after receiving notice of a dispute from a credit reporting
agency) .

Congress committed most of

§

1681s-2 exclusively to

administrative enforcement, but created a narrowly tailored
p
§

cause of action for some

olations. See 15 U.S.C.

1681n (creating private right of action); 15 U.S.C.

10

§

1681s

2 (c)

(excluding claims for

olation of 1681s-2 (a)

ambit of § 1681n); 15 U.S.C. §§ 1681s, 1681s-2(d)

from the
(providing for

administrative enforcement of various provisions by specific
federal and state agencies). Specifically, the FCRA autho

zes a

federal cause of action for "willful or negligent" failure to
correct a credit reporting error after "notice of a credit
dispute from a credit reporting agencyU under § 1681s-2(b), but
permits only regulatory enforcement of the more general duties
set forth in § 1681s-2(a). Markovs

867 F. Supp. 2d at 343­

44; see also Donovan, 574 F. Supp. 2d. at 205
of action

furnishing

of § 1681s-2(a)); - - Is

Ise credit information in violation
432 F. Supp. 2d at 191 (no private

right of action against a"
t

(no private right

rnisher of information

. . until

consumer notifies a credit reporting agency of an inaccuracy
. and the agency then informs the furnisher").

By limiting t
protect

available remedies, Congress sought to

s carefully balanced regulatory scheme aga

st the

impact of litigation that was not specifically authorized. "'The
extra federal remedy in § 1681s-2 was accompanied by extra
preemption in § 1681t(b) (1) (F), in order to implement t

new

plan under which reporting to credit agencies would be
supervised by state and federal administrative agencies rather

11

than judges.'" Macpherson, 665 F.3d at 48
Bank of America,

659 F.3d

(quoting Purcell v.

2, 625 (7th Cir. 2011)); see also

Islam, 432 F. Supp. 2d at 187 (noting the nexpress

intent of

furnishers of information

Congress to have the conduct

regulated exclusively by governmental agencies" {quoting Quigley
v. Penns

No. COO-1661CRB,

2000 WL 1721069, at *3 (N.D. Cal. Nov. 8, 2000))

(emphasis

removed)); Abbett v. Bank of America, No. 3:04CV 01102 WKW VPM,
2006 WL 581193, at *5 (M.D. Ala. March 8, 2006)
state law cla

nba

information" to

on the

ssemination of

(holding all
Ise credit

preempted) .

aintiff states in her Opposition all of
required for preemption:

(I) the

U.S.C. §§ 1681t{b) (1) (F)

&

elements

ral FCRA, specifically 15

1681s-2(a) (1) (A), preempts state law

claims concerning the furnishing of incorrect credit information
to credit reporting agencies:

N.Y. Gen. Bus. Law
§

380-s);

§

(2)

r claim is brought under

380-1 (for violations of Gen. Bus. Law

(3) Section 380-1 requires "the transmission or

provision to a consumer reporting agency of information" as a
result of an identity theft; and (4) she has al

ged that

incorrect information was furnished to credit agencies as a
result of the identity

ft.

See Opp. Br. at 5-6: see also Mov.
12

Br. at 8-10. However, she maintains that her claim is not
preempted because it is "not related H to the subject matter of
§1681s-2, Opp. Br. at 5, i.e., the furnishing of information to
credit reporting agenc

s.

However, the furnishing of

Ise information to credit

reporting agencies is an element of her claim under Gen. Bus.
Law § 380-1. Plaintiff mischaracterizes the requirement in
§ 380-1 that "false credit reportingH have arisen from an
identity theft as a "jurisdictional criteria. H Opp. Br. at 6.
The state law does not contain any "jurisdictional H
Instead, the furnishing of incorrect credit in

teria.

rmation to cause

an incorrect credit report is an inescapable element of the
claim,

ling squarely within the ambit of 15 U.S.C. § 1681s 2.

See 15 U.S.C. § 1681t (b) (1) (F). Although t

claims also contain

other elements (i.e., Gen. Bus. Law § 380 s) not directly
governed by 15 U.S.C. § 1681s 2, presumption is still
appropriate given the significant overlap of 15 U.S.C. § 1681s­
2.

The statutory language preempting state law "with
respect toH the "subject matter H of
formation is "broad and explicit. H

13

rnishing credit
. v

No. 07-CV-6349T, 2008 WL 4507613, at
*3 (W.D.N.Y. Sept. 30, 2008)
v. Swanson, No.

07-CV-3376

Minn. July 30, 2007)), aff'

(quoting Consumer Data Indus. Ass'n

(PJS/JJG),

2007 WL 2219389, at *4

583 F.3d 103, 105 06

(D.

(2d Cir.

2009). Preemption here is not narrowly limited to laws focused
solely on the "intentional furnishing of false credit reports."
Opp. Br. at 6. Any furnishing of information to credit agencies,
including conduct that is not prohibited by the federal law,
falls within its "subject matter." Consumer Data, 2007 WL
2219389, at *4.

When determining the scope of similar statutory
preemption provisions, the Supreme Court, applying the phrase
"relating to" - the equivalent of "with respect to" here - holds
that "relating to" indicates a "broad scope" and "expansive
sweep," preempting state laws" in connection with," or "with
reference to" the preempted subject matter. Cal. Div. of Labor
Standards Enforcement v.
U.S. 316, 324-25 (1997).

Constr.
If the law cont

519

ns a "reference" to

the preempted subject matter, "or makes the existence of
preempted subject matter essential to the law's operation, then
that state law is preempted by the federal law." Met

an

-----"~---

_T~a_x_i~c~a~b:__B~o~a~r~d~o~f~~~~~:~~~_-=o~f~N~e~w~Y~o~
r~kr

14

615 F.3d 152, 156

(2d Cir. 2010)
325)

(citing Cal. Div. of Labor Standards, 519 U.S. at

(holding taxicab hybrid fuel regulations preempted by

federal Energy Policy and Conservation Act). N.Y. Gen. Bus. Law
§ 380-1 has a "reference to U

subject matter of § 1681s-2,

which is "essential to the law's operation,U because

§

380-1

requires the furnishing of information to credit agencies. Id.

Moreover,
theft as it af

§

1681s-2 specifically addresses identity

s credit reporting, which is

very same

subject as § 380 1. See 15 U.S.C. § 1681s-2(a) (6)

(requiring

reasonable procedures to correct information affected by
ident
a

y t

ft and prohibiting furnishing certain information

er report of ident

y theft). Therefore Plaintiff's first and

second causes of action are entirely
incorrectly reI
her cla

empted. Galper

s on two authorities

proposition that

t

is not preempted. In Scott v. Real Estate Fin.

the Second Circuit did not cons

r preemption at all, and the

aim in that case did not concern furnishing i
15 U.S.C.

§

1681s

rmation under

,but rather obtaining a credit report under

lse pretenses and failing to make certain notices to
consumers. 183 F.3d 97, 99 100 (2nd Cir. 1999)
§§

1681q, 1681b (3) (E)). Moreover, in 1995

t

ting 15 U.S.C.
time of the

events at issue in Scott - the express preemption provisions

15

15 U.S.C. § 1681t(b) had not been enacted, and the FCRA
contained only a savings clause preserving consistent state law.
id. at 100 n.1

(

ting pre-1996 amendments version of FCRA);

15 U.S.C. § 1681t (as in effect prior to September 30, 1996)
(enacted in Act of Oct. 26, 1970 Pub. L. 91-508, Title VI,
§

601, 84 Stat. 1136)). ------------ Inc. v. Hawks, also cited
Biosa
One,

by Plaintiff, is also concerned with obtaining a credit report
under false pretenses, and the Court dismissed the claim under
both state and federal law, mooting any preemption question,
which was not raised or considered.

639 F. Supp. 2d 358, 368

(S.D.N.Y. 2009).

The Third Cause Of Action Is Inadequately Pled

Plaintiff's Third Cause of Action for "Conversion of
Intangible Property" fails to allege that s

was deprived of

the use of her "identifying information," which is the property
that she aIle

s was converted. AC

The Plaintiff has

~

38.

leged that Chase converted her

property by "cornrnit[ing] an unautho

zed intentional act by

exercising dominion or control over [p]laintiff's intangible
rsonal property (her identifying in
16

rmation) and deprived

[her] of that property
~

r an indefinite amount of time." AC

38. However, even for intangible property, the tort

conversion requires that the Plaintiff be deprived of her use of
the property; "a defendant who does not 'exclude the owner from
the exercise of [her] rights[] is not liable for conversion'"
18 Misc. 3d 1119(A), 856 N.Y.S.2d 498,
2008 WL 192099, at *5 (Sup. Ct. N.Y. County Jan. 14, 2008)
774

(quoting State of New York v. Seventh
N.E.2d 702, 710,

98 N.Y.2d 249, 25960, 746 N.Y.S.2d 637,

645

(N.Y. 2002)). No facts are alleged to support a plausible
inference that she was actually denied the use of her own
"identifying information" and the conclusory recitation of the
element of deprivation is inadequate under Fed. R. Civ. P. 8.
See Iqbal, 556 U.S. at 678

("Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements,
do not suffice.").

The tort of conversion is traditionally defined as
'"the unauthorized assumption and exercise of the right of
ownership over goods belonging to another to t

exclusion of

the owner's rights.'" Leser, 2008 WL 192099, at *5 (quoting
Seventh

774 N.E.2d at 710, 98 N.Y.2d at 259, 746

N.Y.S.2d at 645). Here Plaintiff has alleged that s
17

was

the form of her

deprived of "intangible property"

"identifying information," and the only identifying information
mentioned in the Complaint is
license number. AC

~

aintiff's name and driver's
ff v. Nationwide Mut. Ins. Co.

24. In

the New York Court of Appeals recognized that intangible
property could be subject to a conversion claim, but only where,
as in the case of tangible property, the plaintiff is entirely
deprived of the use of

property. 864 N.E.2d 1272, 1273,

1276-78, 8 N.Y.3d 283, 292 93, 832 N.Y.S.2d 873, 879 (N.Y. 2007)
(holding that computer files could
conversion claim, where

the subject of a

aintiff was entirely denied use of

those files).

court in Leser dismissed a conversion claim ve
simi

r to Galper's. 2008 WL 192099. The plaintiff in Leser,

like Galper here, unsuccessfully alleged identity the

by the

defendants' unauthorized use of her name, as well as trademarks,
photos and other personal information, and she also brought a
claim for conversion for the unauthorized use of images from her
website and her trade name. Id. at *1, *3, *5. The court
dismissed the conversion claim, holding that the tort of
conversion cannot lie where the

aintiff was not deni

the use

of her purportedly converted property - in Leser the trade name
18

ng information." Id.

and photos; in this case Galper's "identi
at *5.

In her opposition br

f,

aintiff concedes that,

notwithstanding the alleged misuse of
retained

r identity, she "still

r name and identifying information.

u

Opp. Br. at 9.

Although Galper has alleged that her personal bank accounts were
closed as an indirect result of the conspirators' use
identifying information, AC

~~

10, 28, t

her

does not satisfy

missing element of deprivation. Galper was allegedly deprived of
the use of certain bank accounts, not of her identifying
information. Plaintiff's "identifying information" is akin to
t

computer files in A & G Research, Inc. v. GC Metrics, Inc.,

where the court held that because the
the p

a was only copi

from

intiff's computers - and the plaintiff still could use

data

there could be no conversion cl

unauthori

for the allegedly

copying of that data. No. 05870/2007, 19 Misc. 3d

1136(A), 862 N.Y.S.2d 806, 2008 WL 2150110, at *26-*27

(Sup. Ct.

Westchester County May 21, 2008); see also Trustforte Co
Eisen, No. 600521/2005, 10

. v.

sc. 3d 1064(A), 814 N.Y.S.2d 565,

2005 WL 3501587, at *2 (Sup. Ct. N.Y. County Nov. 15, 2005)
(dismissing c

im for conversion of customer lists and other

19

business records because

fendant only copied the informat

and did not deprive plaintiff of the use of it).

Plaintiff relies on cases construing federal criminal
statutes to support her broad and incorrect pronouncement that
"in the Second Circuit .

. Conversion includes the 'misuse and
an unauthorized manner.'" Opp.

abuse' of property or its use '
Br. at 8 9. But

federal statutory cases Galper cites have

nothing to do with common law conversion. See United States v.
rard,

601 F.2d 69 (2d Cir. 1979)

which prohibits theft
Sam

(construing 18 U.S.C. § 641,

government property); United States v.

Inc., 506 F. Supp. 380, 390 (E.D.N.Y. 1981)

--------~~-----

(construing 18 U.S.C. § 2314, which proh

its interstate

transportation of stolen property) .

The Second

rcuit specifically recognized that:

According to New York law, "[clonversion is the
unauthorized assumption and exercise of the
ght
of ownership over goods belonging to another to
the exclusion of the owner's rights.".
. This
includes a "denial or
olation
the
pla
iff's dominion, rights, or possession" over
her property. It also requires that the defendant
exclude the owner from exercis
her rights over
the goods.

20

f v. Nationwide Mut. Ins. Co.
Cir. 2006)

(alteration

original)

460 F.3d 400, 403-04

(2d

(internal quotation marks

and citations omitted); see also, Pac. M. Int'l Co

. v. Raman

Int'l Gems, Ltd., 888 F. Supp. 2d 385, 396 (S.D.N.Y. 2012)
(same)

h Int'l

(collecting cases);

RemoteMDx, Inc., 06 CIV. 3915, 2008 WL 417
Sept. 10, 2008); Bri

~~c~~_.

__

~

__

~

Inc. v.

35, at *3 (S.D.N.Y.

L.P. v. Pate

______________

81 F. Supp. 2d

509,51617 (S.D.N.Y. 2000).

Here, the AC does not allege that Plaintiff was
deprived of

use of her identity. Accordingly, the conversion

aim will be dismissed.

Defendant's Contentions Regarding Inadequacy of Allegations
And Plaintiff's Alleged Damages Are Not Recoverable
Under N.Y. Gen. Bus. Law § 380-s Are Moot

Defendant contends that Plaintiff failed to plead
fraud with particularity under Rule 9(b)

and the alleged damages

she seeks are not recoverable for her claims under N.Y. Gen.
Bus. Law

§

380-s. Plaintiff's First, Second and Third Causes of

Action are preempted by federal law, and Plaintiff's Third Cause
of Action Is Inadequately Pled; as such, Defendant's contentions
are moot.
21

Conclusion

Given the reasoning above, Defendant's motion to
dismiss is granted, and motion to strike is denied as moot. The
AC is dismissed with leave granted to replead within 20 days.

It is so ordered.

New York, NY
March

(t(,

2~3

,~

ROBERT W. SWEET

22