GRUPP v. BANK OF NEW YORK MELLON CORP.

Filing 26

MEMORANDUM OPINION resolving Defendant's Motion to Dismiss. Signed by Judge David S. Cercone on 12/4/14. (kak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RONALD S. GRUPP,
Plaintiff,
v.
BANK OF NEW YORK MELLON
CORP.,
Defendant.

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2:14cv240
Electronic Filing

MEMORANDUM OPINION
I. Introduction
Ronald S. Grupp (“Plaintiff”), commenced this action pro se on February 21, 2014,
against Bank of New York Mellon Corp. (“Defendant”), purporting to assert numerous federal
and state law causes of action. (ECF No. 1). Presently pending before the Court is the
Defendant’s Motion to Dismiss or in the Alternative, Motion to Enforce Settlement Agreement
and General Release. (ECF No. 4). For the reasons that follow, the Motion will be granted.
II. Background
According to the allegations in the Complaint, this lawsuit centers on events that
transpired during Plaintiff’s employment with Defendant from 2006 through July 9, 2013.
Plaintiff was employed by Defendant beginning in February 2006. (ECF No. 1 at ¶ 21). He
avers that he had extensive experience in handling securities and was Defendant’s “Fiduciary
Agent” with respect thereto. (Id. at ¶¶ 21, 24). Plaintiff states that he alerted management with
respect to “major fraudulent activity”, “unethical risky practice”, and “breach of fiduciary duties”
from 2006 until January 2013. (Id. at ¶ 23). Plaintiff further states that “with years of
experience” and during his employment, he repeatedly reported “public policy breach[es].” (Id.
at ¶ 30). Plaintiff alleges that on December 20, 2012, Defendant forced him to “take asset
valuation classes or be terminated.” (Id. at ¶ 27). Plaintiff further alleges that from January 2012

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until July 2013, he received “countless e-mail threats, intimidation, and corrective actions
warnings documenting these written threats of termination.” (Id. at ¶ 28).
Plaintiff’s Complaint goes on to allege that in January 2013, he alerted Defendant’s legal
counsel regarding the “unethical risky practice” and an investigation ensued. (Id. at ¶¶ 36-40).
Plaintiff claims that he cooperated with the internal investigation from January 24, 2013 until he
was “forced to resign” on July 9, 2013. (Id. at ¶ 48). Plaintiff contends that he suffered
retaliation, intimidation, threats, and defamation of character from 2012 through July 2013
regarding his “due diligence and fiduciary duty for his customers.” (Id. at ¶ 49). Although the
significance is unclear, Plaintiff appears to allege that Defendant filed misleading documents
with the Securities and Exchange Commission, sold certain stock, and amended “various
corporate bylaws.” (Id. at ¶¶ 17, 19, 41-47). Plaintiff alleges that on July 9, 2013, he entered
into a “prospectus contract” drafted by Defendant in violation of the Security Exchange Act of
1933.1 (Id. at 16).
Based on these allegations, Plaintiff cites a slew of federal and state statutory provisions,
some of which are jurisdictional or venue-related and some of which are substantive in nature.
(ECF No. 1 at p. 2). He summarizes his lawsuit as follows:
This is an action brought on by Mr. Ronald S. Grupp (fiduciary agent) for
violations of the above named acts in connection with purported untrue
misleading statements appearing on Plaintiff’s reports, the defendants’ tactics in
attempts to cover up the fraudulent activity, misrepresentation and the defendants’
refusal to acknowledge the unlawful acts regarding it.
(ECF No. 1 at ¶ 10). He seeks damages and injunctive relief. (Id. at pp. 7-8). Defendant has
moved for dismissal, arguing that Plaintiff has failed to state a claim upon which relief can be
granted, and, alternatively, that all of his claims are barred by the Settlement Agreement and
Release Plaintiff executed at the time of his termination. (ECF No. 5 at pp. 5-21).
III. Standard of Review
It is well-settled that in reviewing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) “[t]he applicable standard of review requires the court to accept as true all
The only contract entered into between the parties is the Settlement Agreement and General
Release dated July 9, 2013. (ECF No. 22).
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allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view
them in the light most favorable to the non-moving party.” Rocks v. City of Philadelphia, 868
F.2d 644, 645 (3d Cir. 1989). Under the Supreme Court’s decision in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 561, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), dismissal of a complaint
pursuant to Rule 12(b)(6) is proper only where the averments of the complaint plausibly fail to
raise directly or inferentially the material elements necessary to obtain relief under a viable legal
theory of recovery. Id. at 544. In other words, the allegations of the complaint must be
grounded in enough of a factual basis to move the claim from the realm of mere possibility to
one that shows entitlement by presenting “a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed. 2d 868 (2009) (quoting Twombly, 550
U.S. at 570).
“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. In contrast, pleading facts that only offer “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action will not do[,]” nor will advancing only factual allegations
that are merely consistent with a defendant’s liability. Id. Similarly, tendering only “naked
assertions” that are devoid of “further factual enhancement” falls short of presenting sufficient
factual content to permit an inference that what has been presented is more than a mere
possibility of misconduct. Id. at 678-79; see also Twombly, 550 U.S. at 563 n.8 (a complaint
states a claim where its factual averments sufficiently raise a “‘reasonably founded hope that the
[discovery] process will reveal relevant evidence’ to support the claim.”) (quoting Dura
Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) &
Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741, 95 S.Ct. 1917, 44 L.Ed.2d 539
(1975)); accord Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997) (a court
need not credit “bald assertions” or “legal conclusions” in assessing a motion to dismiss) (citing
with approval Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND
PROCEDURE § 1357 (2d ed. 1997) (“courts, when examining 12(b)(6) motions, have rejected
‘legal conclusions,’ ‘unsupported conclusions,’ ‘unwarranted inferences,’ ‘unwarranted

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deductions,’ ‘footless conclusions of law,’ or ‘sweeping legal conclusions cast in the form of
factual allegations.’”).
This is not to be understood as imposing a probability standard at the pleading stage.
Iqbal, 556 U.S. at 678 (“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.”); Phillips v. County
of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (same). Instead, “[t]he Supreme Court’s
Twombly formulation of the pleading standard can be summed up thus: ‘stating ... a claim
requires a complaint with enough factual matter (taken as true) to suggest the required element ...
[and provides] enough facts to raise a reasonable expectation that discovery will reveal evidence
of the necessary element.’” Phillips, 515 F.3d at 235; see also Wilkerson v. New Media
Technology Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008) (“The complaint must state
‘enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary element.’”) (quoting Phillips, 515 F.3d at 235) (citations omitted). “Once a claim has
been stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563.
Pro se plaintiffs are held to a less stringent standard than individuals represented by
counsel. Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402, 128 S.Ct. 1147, 170 L.Ed.2d 10
(2008). (“Pro se litigants are held to a lesser pleading standard than other parties.”). A pro se
plaintiff, however, is still required to adhere to standard rules of civil procedure. See McNeil v.
United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). While the court must accept as true all
factual allegations in a complaint, it “need not credit a complaint’s … legal conclusions when
deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
1997) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).
Even though plaintiff is pro se, he or she must “set forth sufficient information to outline the
elements of [his or her] claim.” Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citing 5A
C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (2d ed. 1990)). Thus,
plaintiff is required to present enough factual allegations for the court, accepting those

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allegations as true, to determine whether there are plausible claims that defendant violated
plaintiff’s federal rights. Id.
IV. Discussion
Although Plaintiff purports to invoke a number of federal laws, as well as state laws, his
Complaint utterly fails to comply with the demands of Fed.R.Civ.P. 8(a), which requires the
plaintiff to provide a “short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Notwithstanding his recitation of numerous provisions of
federal and state law, Plaintiff has alleged no facts that could plausibly state a claim under any of
these sources of law. This is contrary to the demands of Twombly, which requires that a
complaint contain sufficient factual matter, accepted as true, to “state a claim that is plausible on
its face.” Twombly, 550 U.S. at 570; see also Thakar v. Tan, 372 F. App’x 325, 328 (3d Cir.
2010) (a litigant, even one that is pro se, “is not absolved from complying with Twombly and the
federal pleading requirements merely because s/he proceeds pro se.”).
Plaintiff purports to rely on the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act (Count I), “FDIC Law, Regulations, Related Acts”, the Age Discrimination in
Employment Act of 1967, the “Equal Employment Opportunity Commission”, the Pennsylvania
Unfair Trade Practices and Consumer Protection Law (73 P.S. §§ 201.1-201.9.2) (Count IV), and
“Office of Thrift Supervision” (Count V), as grounds for relief. However, these federal statutory
and state provisions are facially inapplicable and lack any relevance to the factual allegations
stated in the Complaint. Other sources of law cited within are patently insufficient because they
either confer no substantive rights, do not provide a private right of action, or are criminal
statutes, such as the “Office of Comptroller of Currency,” (12 U.S.C. § 73) (Count II), Corporate
Powers of Associations, 12 U.S.C. § 24, and Theft of Trade Secrets, 18 U.S.C. § 1832.2
Although it is not designated in a particular Count in his Complaint, Plaintiff appears to
assert a claim against Defendant for filing a false and misleading registration statement in
violation of the Securities Exchange Act, 15 U.S.C. § 78r(a), which provides:

It is difficult to discern the exact nature of the Plaintiff’s claims. Plaintiff identifies five causes
of action in the caption of his Complaint, lists fourteen “violation[s]” in the history section of the
Complaint, and purports to plead six causes of action in six counts of the Complaint.
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Any person who shall make or cause to be made any statement in any application,
report, or document filed pursuant to this chapter or any rule or regulation
thereunder or any undertaking contained in a registration statement ..., which
statement was at the time and in the light of the circumstances under which it was
made false or misleading with respect to any material fact, shall be liable to any
person (not knowing that such statement was false or misleading) who, in reliance
upon such statement, shall have purchased or sold a security at a price which was
affected by such statement, for damages caused by such reliance, unless the
person sued shall prove that he acted in good faith and had no knowledge that
such statement was false or misleading....
15 U.S.C. § 78r(a). A prima facie case requires a plaintiff to plead: “(i) the defendant made a
false or misleading statement, (ii) the statement was contained in a document ‘filed’ pursuant to
the Exchange Act or any rule or regulation thereunder, (iii) reliance on the false statement, and
(iv) resulting loss to the plaintiff.” In re Stone & Webster, Inc., Sec. Litig., 414 F.3d 187, 193
(1st Cir. 2005); see also Deephaven Private Placement Trading, Ltd. v. Grant Thornton & Co.,
454 F.3d 1168, 1171 (10th Cir. 2006). Plaintiff has failed to plead any of the above elements,
and has only asserted, in a conclusory fashion, that Defendant filed a Registration Statement
containing false and misleading statements. (ECF No. 1 at ¶ 17). Such conclusory allegation is
insufficient under Twombly and its progeny.3
More fundamentally, however, the Court agrees with Defendant that the instant lawsuit is
barred by the terms of the Settlement Agreement and General Release.4 As stipulated in the
Plaintiff’s allegations purporting to assert violations of the Pennsylvania Securities Act, 70 P.S.
§§ 1-402, 1-404, 1-407 (Count III), as well as his common law claims of defamation and
intentional infliction of emotional distress (Count VI), are also patently deficient under Twombly.
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In evaluating a motion to dismiss, a court may consider only the complaint, exhibits attached to
the complaint, matters of public record, and undisputedly authentic documents if the
complainant’s claims are based upon these documents. Pension Benefit Guar. Corp. v. White
Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Importantly, “a court may consider an
undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if
the plaintiff’s claims are based on the document. Otherwise, a plaintiff with a legally deficient
claim could survive a motion to dismiss simply by failing to attach a dispositive document on
which it relied.” Id. Plaintiff’s claim for alleged violations of the Securities and Exchange Act
are based on the Settlement Agreement and General Release (ECF No. 22) executed by the
parties. (ECF No. 1 at ¶¶ 16, 48, ECF No. 9 at p. 2). In addition, the authenticity of the
document is not in dispute. Therefore, the Court may properly consider this document in
resolving the instant Motion. See Cuchara v. Gai-Tronics, Corp., 2004 WL 1438186 at 5
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Settlement Agreement, Plaintiff and Defendant mutually agreed with respect to the terms and
conditions of Plaintiff’s separation from employment, as well as the settlement, compromise, and
release of claims he asserted in the review of his internal complaints. (ECF No. 22 at p. 1).
Specifically, the Settlement Agreement contained the following “General Release” language:
In consideration of the valuable consideration received from MBNA Private
Wealth PA Services, LLC (the “Company”), as set forth more fully in the
attached Settlement Agreement dated July 9, 2013 incorporated herein by
reference, you, for yourself and for your heirs, executors, administrators,
successors and assigns, forever settle, compromise, release, and discharge the
Company, its parent, and each and all of their present and former subsidiaries and
affiliates, officers, directors, employees, agents, representatives, employee
benefits plans and such plans’ administrators, fiduciaries, trustees, recordkeepers
and service providers, and each of its and their respective successors and assigns,
each and all of them in their personal and representative capacities (herein
collectively referred to as the “Released Parties”), from and against any and all
claims, grievances, injuries, controversies, agreements, covenants, promises,
debts, accounts, sums of money, wages, actions, causes of action, suits,
arbitrations, attorneys’ fees, costs, or any right to any monetary damages or any
other form of personal relief, whether known or unknown, in law or in equity, by
contract, tort, law of trust or pursuant to federal, state or local statute, regulation,
ordinance or common law, which you now have, ever have had, or may hereafter
have, based upon or arising from any fact or set of facts, whether known or
unknown to you, by reason of any matter, cause, act or omission arising prior to
your signing this General Release, including, without limitation, those arising out
of or in connection with your employment with or termination from the Company.
…
(ECF No. 22 at p. 11).
In numerous paragraphs throughout his Complaint, as more fully detailed above, Plaintiff
specifically refers to events that transpired during his employment with Defendant beginning in
2006 and ending with the execution of the Settlement Agreement and General Release on July 9,
2013. As such, these claims are clearly encompassed within the terms of the General Release,
which bars Plaintiff from filing suit based on any claims, known or unknown, “arising out of or

(E.D.Pa. 2004) (considering agreement and general release on 12(b)(6) motion where plaintiff’s
allegations were based on release and it was attached as an exhibit to both supporting
memoranda), aff’d, 129 F. App’x 728 (3d Cir. 2005).
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in connection with” his employment or termination. (ECF No. 22 at p. 11). Under Pennsylvania
law, “[a] signed release is binding upon the parties unless executed and procured by fraud,
duress, accident or mutual mistake.” Three Rivers Motors Co. v. Ford Motor Co., 522 F.2d 885,
892 (3d Cir. 1975); Thomas v. Sandstrom, 459 F. App’x 93, 95 (3d Cir. 2012).
Here, Plaintiff claims that he was “manipulated, under duress, and coerced” into
executing the Settlement Agreement and General Release. (ECF No. 9 at p. 2). Similar
allegations of duress were considered and rejected by the district court in Robins v. Bimbo Foods
Bakeries Distribution, Inc., 2013 WL 5803783 at *6 (E.D.Pa. 2013):
… In seeking to avoid the effect of the Release, Plaintiff alleges that Defendant
obtained his signature by fraud and/or duress. These allegations fail as a matter of
law. Under Pennsylvania law, “duress is not established merely by showing that
the release was given under pressure.” Thomas, 459 F. App’x at 95 (quoting
Three Rivers Motors Co., 522 F.3d at 893). Further, “where the contracting party
is free to come and go and to consult with counsel, there can be no duress in the
absence of threats of actual bodily harm.” Three Rivers Motors Co. v. Ford
Motor Co., 522 F.2d 885, 893 (3d Cir.1975) (citing Carrier, 233 A.2d at 521); see
also Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 295 (2003) (“[T]he
law is clear that the existence of financial pressure to sign a waiver is insufficient
to establish that it was executed involuntarily.”); Degenhardt v. Dillon Co., 543
Pa. 146, 669 A.2d 946, 951 (1996) (rejecting argument that duress rule from
Carrier is inapplicable when counsel is unavailable at the precise moment that an
agreement is signed). Courts will not find duress where a party is free to consult
with counsel or to take the Agreement home and review it further, and the party
acknowledges that no one physically forced him or threatened him in any way if
he failed to sign. See Gregory v. Derry Twp. Sch. Dist., 418 F. App’x 148, 152
(3d Cir. 2011).
Plaintiff has not alleged sufficient facts showing that he signed the Release
under duress. Plaintiff makes no allegation of any physical threat on the part of
Defendant or its representatives. Rather, Plaintiff alleges merely that Defendant
refused to complete the sale of the distribution route until Plaintiff has signed the
Release and that defendant continued to run the distribution route at Plaintiff’s
expense during that time that Plaintiff refused to sign the Release. SAC ¶¶ 42–43.
Plaintiff also alleges that Defendant’s representatives refused to allow Plaintiff to
confer with counsel with regards to the Release. Id. ¶ 42. However, Plaintiff also
states that he refused to sign the Release for two weeks, during which time
Plaintiff could have consulted counsel. Id. at 45.
Robins, 2013 WL 5803783 at *6.
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We reach the same result in the instant case. Plaintiff has not alleged that he signed the
Settlement Agreement and Release under the threat of physical harm. To the extent Plaintiff is
claiming he signed the documents under economic duress, such claim fails as a matter of law.
See Three Rivers Motors Co., 522 F.2d at 893. Finally, the documents reflect that Plaintiff had
the opportunity to consult with counsel before executing same. (ECF No. 22 at p. 12 (“You
represent and warrant that you have been advised to consult with an attorney before signing this
General Release and that you have executed this General Release after having the opportunity to
consider its terms for at least 21 days.”)). Accordingly, Plaintiff cannot now claim duress. See
Degenhardt v. Dillon Co., 669 A.2d 946, 950 (Pa. 1996) (where a party has the opportunity to
consult with legal counsel before entering into a contract, that same party cannot later invalidate
the contract by claiming economic duress).
V. Conclusion
The United States Court of Appeals for the Third Circuit has held that district courts
should not dismiss a pro se complaint without granting the plaintiff leave to amend unless
amendment would be inequitable or futile. Kim v. I.R.S., 522 F. App’x 157, 159 (3d Cir. 2013)
(citing Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004)). Because the instant Complaint falls
within the scope of the Settlement Agreement and General Release and is therefore barred as a
matter of law, it is incapable of being cured by way of further amendment and dismissal of the
Complaint with prejudice is appropriate. Accordingly, Defendant’s Motion to Dismiss or in the
Alternative, Motion to Enforce Settlement Agreement and General Release (ECF No. 4) will be
granted. An appropriate Order follows.
Dated: December 4, 2014
s/David Stewart Cercone
David Stewart Cercone
United States District Judge
cc:

Ronald S. Grupp
149 Grove Avenue
Pittsburgh, PA 15229
(via First-Class U.S. Mail)
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Catherine S. Ryan, Esquire
Richard L. Etter, Esquire
(via CM/ECF Electronic Mail)

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