Riviello v. Penn State Federal Credit Union et al

Filing 11

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the 6 PARTIAL MOTION TO DISMISS is DENIED. Signed by Chief Judge Yvette Kane on Sept. 6, 2011. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GERALD ROSARIO RIVIELLO, JR., on
behalf of himself and those similarly
situated,
Plaintiff
v.
PENN STATE FEDERAL CREDIT
UNION, et al.,
Defendants

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Civil Action No. 4:CV-11-01079
(Chief Judge Kane)

MEMORANDUM ORDER
Pending before the Court is a partial motion to dismiss filed by Defendant Penn State
Federal Credit Union. (Doc. No. 6.) The motion is fully briefed and is ripe for disposition. For
the reasons that follow, the Court will deny Defendant’s motion.
I.

BACKGROUND
Plaintiff Gerald Rosario Riviello, Jr. filed a complaint in the Pennsylvania Court of

Common Pleas for Centre County alleging violations of the Electronic Funds Transfer Act
(“EFTA”), 15 U.SC. § 1693 et seq. (Doc. No. 1-2.) Defendants removed the action to this Court
on June 3, 2011. (Doc. No. 1.) Paragraphs 27 through 43 of the complaint consist of class
allegations. (Doc. No 1-2 ¶¶ 27-43.) On July 1, 2011, Defendant Penn State Federal Credit
Union filed a partial motion to dismiss Plaintiff’s complaint and a brief in support. (Doc. Nos. 6,
7.) Defendants move to strike and dismiss the complaint’s class allegations. (Doc. No. 6 at 1.)
Plaintiff filed a brief in opposition on August 9, 2011. (Doc. No. 9.)
II.

STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint.

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Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In reviewing a motion to dismiss, a court
may “consider only the allegations in the complaint, exhibits attached to the complaint, matters
of public record, and documents that form the basis of a claim.” Lum v. Bank of Am. , 361 F.3d
217, 221 n.3 (3d Cir. 2004). The motion will only be properly granted when, taking all factual
allegations and inferences drawn therefrom as true, the moving party is entitled to judgment as a
matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden
is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29,
33 (3d Cir. 1980). Thus, the moving party must show that Plaintiff has failed to “set forth
sufficient information to outline the elements of his claim or to permit inferences to be drawn
that those elements exist.” Kost, 1 F.3d at 183 (citations omitted). A court, however, “need not
credit a complaint’s ‘bald assertions’ or ‘legal conclusions’ when deciding a motion to dismiss.”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). Indeed, the Supreme
Court has recently held that while the 12(b)(6) standard does not require “detailed factual
allegations,” there must be a “‘showing,’ rather than a blanket assertion of entitlement to relief. .
. . ‘[F]actual allegations must be enough to raise a right to relief above the speculative level.’”
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). Put otherwise, a civil complaint must “set out
‘sufficient factual matter’ to show that the claim is facially plausible.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955
(2009)).
III.

DISCUSSION
In support of its partial motion to dismiss, Defendant argues that Plaintiff’s class

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allegations fail to satisfy the requirements of Rule 23(b)(3) of the Federal Rules of Civil
Procedure. (Doc. No. 7 at 4.) Rule 23(b)(3) provides, in pertinent part, that a class action may
be maintained if Rule 23(a) is satisfied and if:
the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy. The
matters pertinent to these findings include:
(A the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3). Defendant asserts that Plaintiff’s class allegations cannot survive a
Rule 23(b) predominance analysis. (Doc. No. 7 at 4.) Plaintiff argues1 that other courts “have
approved class action claims in similar cases” and requests that any issues regarding the class
allegations be addressed following discovery. (Doc. No. 9-1 at 3.) Recently, the Third Circuit
held that a district court’s ruling on class certification on a motion to dismiss was premature,
noting that, “[p]articularly when a court considers predominance, it might have to venture into
the territory of the claim’s merits and evaluate the nature of the evidence. In most cases, some
level of discovery is essential to such an evaluation.” Landsman & Funk PC v. Skinder-Strauss

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The Court notes that Plaintiff devotes the entirety of his brief to discussing issues that
were not raised by Defendant, namely, whether Plaintiff’s class allegations can survive a Rule
23(b)(3)’s superiority analysis and whether adequate notice can be provided to potential class
members. (Doc. No. 9-1 at 1.)
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Assocs., 640 F.2d 72, 93 (3d Cir. 2011) (citations omitted). The Court is not convinced that this
case is one of the “rare few where the complaint itself demonstrates that the requirements for
maintaining a class action cannot be met.” Id. at 93 n.30. Because the parties have not yet
conducted discovery in this case and Plaintiff has not yet moved for class certification, the Court
will deny Defendant’s motion. See Mills v. First Credit Union, No. 4:11-cv-686, 2011 WL
3236313 (M.D. Pa. July 28, 2011); Vlachos v. Tobyhanna Army Depot Fed. Credit Union, No.
3:11-cv-0060, 2011 WL 2580657 (M.D. Pa. June 29, 2011).
ACCORDINGLY, on this 6th day of September 2011, IT IS HEREBY ORDERED
THAT Defendant’s partial motion to dismiss (Doc. No. 6) is DENIED.

S/ Yvette Kane
Yvette Kane, Chief Judge
United States District Court
Middle District of Pennsylvania

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