Maskanian v. Wells Fargo & Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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BAHRAM MASKANIAN,

Plaintiff, MEMORANDUM AND ORDER

21-cv-5361 (KAM)(RML)

-against-

WELLS FARGO & COMPANY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Bahram Maskanian, proceeding pro se,

commenced the above-captioned action in the Supreme Court of the

State of New York, Kings County against Defendant Wells Fargo &

Company (“Wells Fargo”). (Docket No. 1-2 (“Compl.”).) Plaintiff

asserts claims for violations of the Dodd-Frank Wall Street

Reform and Consumer Protection Act, 12 U.S.C. § 5301 et seq.

(the “Dodd-Frank” Act), and pursuant to the federal criminal

code, 18 U.S.C. § 656, for theft, embezzlement, or misapplication

a by bank officer or employee. (Compl. at 4, ¶ 3.1)

On September 27, 2021, Defendant timely removed the

action from state court to this Court pursuant to 28 U.S.C. §§

1441 and 1446, invoking this Court’s original federal question

jurisdiction. (See Docket No. 1 (“Notice of Removal”) at 1.)

1 All pagination citations refer to the page number assigned by the Court’s

CM/ECF system.

Presently before the Court is Defendant’s motion to

dismiss the Complaint for failure to state a claim, pursuant to

Fed. R. Civ. P. 12(b)(6). For the reasons set forth below,

Defendant’s motion is GRANTED.

BACKGROUND

The following facts, set forth in the Complaint and

the attached exhibits, are presumed true for purposes of

considering Defendant’s motion. See Nicosia v. Amazon.com,

Inc., 834 F.3d 220, 230–31 (2d Cir. 2016) (holding that courts

may consider on a motion to dismiss “any written instrument

attached to [the complaint] as an exhibit or any statements or

documents incorporated in it by reference” and other documents

“integral” to the complaint).

On May 5, 2021, Plaintiff checked his Wells Fargo

account online to see if an unsubscribed news outlet had charged

his account. (Compl. at 4, ¶ 4.) He alleges that he then

discovered “what he thought at first [was] a miscalculation” on

his 03/29/2021 to 04/27/2021 statement. (Id.) Plaintiff called

Wells Fargo customer service on four separate occasions on May

5 in an attempt “to explain the overcharging,” but alleges that

“none of them would listen to simple logic and math.” (Id.)

Plaintiff describes subsequent unsuccessful attempts to report

the alleged error to Wells Fargo.

Upon receiving his paper bill in the mail on May 9,

2021, Plaintiff paid his bill in full, minus $259.90, the charge

which Plaintiff describes as “fraudulent overcharging.” (Id. at

5, ¶ 5.) Plaintiff alleges, in short, that Wells Fargo “hide[s]”

the $259.90 sum within “‘New Balance’” on its account statements.

(Id. at 5, ¶ 6.)

A few days later, a person from Well Fargo, “Christina

S,” left Plaintiff a voicemail saying that she had received

Plaintiff’s letter of calculations alongside his payment.

Plaintiff called and spoke with Christina on May 24, 2021, but

the call did not resolve Plaintiff’s issue. (Id. at 5, ¶ 7.)

Following this call, Plaintiff sent an email to various members

of Wells Fargo upper management regarding his case, and spoke

with other Wells Fargo representatives to no avail. (Id. at 5-

6, ¶¶ 8-10.) Plaintiff claims that “Wells Fargo’s behavior and

blatant refusal to remove the overcharge made plaintiff certain,

that Wells Fargo’s staff are involved in a systemic and

deliberate accounting fraud perpetrated on their customers.”

(Id. at 6, ¶ 11.) On June 21, 2021, Plaintiff filed a Civilian

Crime Report with the U.S. Attorney’s Office for the Southern

District of New York, in which he asserted that he was “convinced

[Wells Fargo’s] double charging is systematic and widespread,”

and that it “[s]eems they are double charging many other

customers as well.” (Compl. at 9-10.)

LEGAL STANDARD

To survive a motion to dismiss pursuant to Rule

12(b)(6), 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, 129 S.Ct.

1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929

(2007)). “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 conduct

alleged.” Id.

When considering a motion to dismiss under Rule

12(b)(6), a district court must “accept as true all factual

statements alleged in the complaint and draw all reasonable

inferences in favor of the non-moving party.” McCarthy v. Dun

& Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citation

omitted). Courts, however, “are not bound to accept as true a

legal conclusion couched as a factual allegation.” Iqbal, 556

U.S. at 678 (internal quotation marks omitted).

In considering a 12(b)(6) motion, the court may also

refer to “documents attached to the complaint as an exhibit or

incorporated in it by reference, to matters of which judicial

notice may be taken, or to documents either in plaintiffs’

possession or of which plaintiffs had knowledge and relied on in

bringing suit.” Brass v. Am. Film Tech., Inc., 987 F.2d 142,

150 (2d Cir. 1993) (internal citations omitted); see also

Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 1993)

(clarifying that “reliance on the terms and effect of a document

in drafting the complaint is a necessary prerequisite to the

court's consideration of a document on a dismissal motion; mere

notice of possession is not enough”) (emphasis omitted).

Where, as here, the plaintiff is proceeding pro se,

pleadings “must be construed liberally and interpreted to raise

the strongest arguments that they suggest.” Sykes v. Bank of

Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed.

Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). A pro se

complaint, “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.”

Boykin v. KeyCorp, 521 F.3d 202, 213–14 (2d Cir. 2008) (quoting

Erickson v. Pardus, 55 U.S. 89, 94 (2007) (per curiam)). But

although liberally interpreted, a pro se complaint must still

state a claim to relief that is plausible on its face, as the

“duty to liberally construe a plaintiff’s complaint [is not] the

equivalent of a duty to re-write it.” Geldzahler v. N.Y. Med.

Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009).

DISCUSSION

I. Dodd-Frank Act

The Dodd-Frank Act was enacted to “promote the

financial stability of the United States by improving

accountability and transparency in the financial system, to end

‘too big to fail’, to protect the American taxpayer by ending

bailouts, to protect consumers from abusive financial services

practices, and for other purposes.” Pub. L. No. 111-203, 124

Stat. 1376 (2010).

Plaintiff asserts in his Complaint that the Dodd-Frank

Act “states that it is unlawful for any provider of consumer

financial products and services to engage in any deceptive,

fraudulent, or abusive act of business practice.” (Compl. at 4,

¶ 3.) The Court accordingly construes the Complaint as asserting

a claim pursuant to 12 U.S.C. § 5531(a) which provides:

The Bureau may take any action authorized

under part E to prevent a covered person or

service provider from committing or engaging

in an unfair, deceptive, or abusive act or

practice under Federal law in connection

with any transaction with a consumer for a

consumer financial product or service, or

the offering of a consumer financial product

or service.

12 U.S.C. § 5531(a).

It is well-established and courts have consistently

found, however, that the Act does not provide for a private right

of action under this provision. See, e.g., Oparaji v. ABN AMRO

Mortg. Grp., Inc., No. 19-CV-01650 (MKB), 2020 WL 9816011, at

*16 (E.D.N.Y. Sept. 18, 2020) (“Plaintiff provides no statutory

basis, and the Court can find none, for finding a private right

of action under these provisions of the statute, which outline

duties, authorities, and enforcement powers of the Consumer

Financial Protection Bureau.”) (collecting cases); Bonilla v.

Am. Heritage Fed. Credit Union, No. 20-CV-2053, 2020 WL 2219141,

at *10 (E.D. Pa. May 7, 2020) (“The Dodd-Frank Act vests

authority in the Consumer Financial Protection Bureau to enforce

section 5531. There is no private right of action under section

5531.”); Beider v. Retrieval Masters Creditors Bureau, Inc., 146

F. Supp. 3d 465, 472 (E.D.N.Y. 2015) (“The Court is not aware of

any language of Dodd–Frank explicitly providing for a private

cause of action for unfair, deceptive, or abusive acts or

practices.”).

Further, courts have “commonly declined to read

private causes of action into provisions of Dodd-Frank that do

not explicitly provide for them.” Beider, 146 F. Supp. 3d at

472 (citing Regnante v. Sec. Exch. Offs., 2015 WL 5692174, at *7

(S.D.N.Y. Sept. 28, 2015) (collecting cases)); see also

Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 116 (2d Cir. 2007)

(“This Court . . . cannot ordinarily conclude that Congress

intended to create a right of action when none was explicitly

provided.”).

As Defendant notes in its memorandum of law, (ECF No.

32-1 (“Def. Mem.”) at 5), Dodd-Frank amended the Securities

Exchange Act of 1934 to include 15 U.S.C. § 78u-6, a

“whistleblower” provision intended “to protect whistleblowers

from employment discrimination.” Digit. Realty Trust, Inc. v.

Somers, 138 S. Ct. 767, 773-74 (2018). Section 78u-6 defines

“whistleblower” as “any individual who provide[s] ...

information relating to a violation of the securities laws to

the Commission, in a manner established, by rule or regulation,

by the Commission.” See 15 U.S.C. § 78u-6(a)(6); see also Digit.

Realty Trust, 138 S. Ct. at 775 (“Dodd-Frank permits a

whistleblower to sue a current or former employer directly in

federal district court.”). This amendment “create[d] a private

right of action [by a former or current employee] against an

employer who retaliates against a whistleblower for engaging in

one or more of three categories of protected activity.” Daly v.

Citigroup Inc., 939 F.3d 415, 422 (2d Cir. 2019).

Here, Plaintiff cannot state a claim under the Dodd-

Frank Act because he has not pleaded facts demonstrating that he

is a “whistleblower” as defined in or protected by the Act, such

as allegations that Defendant is a current or former employer of

Plaintiff or allegations that Plaintiff has provided information

to the Commission about Defendant’s alleged violations of

securities laws. Dodd-Frank’s narrow private right of action

permits whistleblowers to sue a current or former employer —

Plaintiff has not alleged that he is a current employee or was

previously an employee of Defendant Wells Fargo.2 In fact,

Plaintiff’s allegations demonstrate that he was a customer of

Defendant. Plaintiff’s Complaint references Plaintiff viewing

his “Wells Fargo’s VISA account online,” calling “Wells Fargo’s

customer service,” “using Wells Fargo’s online messaging

center,” and other references to being a customer of Defendant.

(See, e.g., Compl. at 4-6.) Accordingly, Plaintiff’s claim under

the Dodd-Frank Act is dismissed pursuant to Fed. R. Civ. P.

12(b)(6).

II. 18 U.S.C. § 656

Plaintiff also purports to bring a claim against

Defendant pursuant to 18 U.S.C. § 656, a federal criminal statute

that makes the “[t]heft, embezzlement, or misapplication by [a]

2 Moreover, 15 U.S.C. § 78u-6(h) of Dodd-Frank, governing “Protection of

Whistleblowers,” states in part: “No employer may discharge, demote,

suspend, threaten, harass, direct or indirectly, or in any other manner

discriminate against, a whistleblower in the terms and conditions of

employment because of any lawful act done by the whistleblower . . . .” 15

U.S.C. § 78u-6(h)(1)(A) (emphasis added).

bank officer or employee” punishable by imprisonment, fine, or

both. It is well-established, however, that “federal criminal

statutes do not provide private causes of action,” Sheehy v.

Brown, 335 F. App'x 102, 104 (2d Cir. 2009) (summary order);

Spanierman v. 4 Park Assocs. LLC, No. 20-CV-4372 (LLS), 2020 WL

4547616, at *2 (S.D.N.Y. Aug. 4, 2020) (holding that Plaintiff

“cannot rely on a federal criminal statute as a basis for this

civil action because such statutes do not provide private causes

of action”) (collecting cases); Tasaka v. Bayview Loan

Servicing, LLC, No. 17-CV-07235 (LDH), 2022 WL 992472, at *6, *6

n.11 (E.D.N.Y. Mar. 31, 2022). In fact, “[i]t is a truism, and

has been for many decades, that in our federal system crimes are

always prosecuted by the Federal Government, not . . . by private

complaints.” Conn. Action Now, Inc. v. Roberts Plating Co., 457

F.2d 81, 86–87 (2d Cir. 1972). Accordingly, as Plaintiff “has

no right or authority to compel anyone’s prosecution or to

enforce federal criminal laws,” his claim under 18 U.S.C. § 656

must be dismissed. See Spanierman, 2020 WL 4547616, at *2.3

3 To the extent Plaintiff may be alleging a claim for common law fraud

under New York state law, the Court also declines to exercise supplemental

jurisdiction over any such claim, as the Court has dismissed all claims

over which it has original jurisdiction. See 28 U.S.C. § 1367(c)(3).

III. Leave to Amend

The Court finds here that amendment would be futile

because the defects in Plaintiff’s liberally-construed claims

are “substantive” and “better pleading will not cure [them].”

See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000);

see also Jordan v. Chase Manhattan Bank, 91 F. Supp. 3d 491, 510

(S.D.N.Y. 2015) (“If the problems with a claim are ‘substantive’

rather than the result of an ‘inadequately or inartfully pleaded’

complaint, an opportunity to replead would be ‘futile’ and

‘should be denied.’”) (citation omitted)); Oparaji, 2020 WL

9816011, at *18.

Furthermore, “the Second Circuit has consistently

stated that district courts may deny leave to amend when

plaintiffs request such leave in a cursory sentence on the last

page of an opposition to a motion to dismiss, without any

justification or an accompanying suggested amended pleading.”

In re Ferrellgas Partners, L.P., Sec. Litig., No. 16-CV-7840

(RJS), 2018 WL 2081859, at *20 (S.D.N.Y. Mar. 30, 2018)

(collecting cases), aff’d, 764 F. App'x 127 (2d Cir. 2019)

(summary order). Here, in his opposition to Defendant’s motion

to dismiss, Plaintiff has not even requested leave to amend “in

a cursory sentence,” much less provided any basis for amending

his complaint. (See generally ECF No. 32-2, Pl. Opp.) Plaintiff

did not address any of Defendant’s arguments as to why amendment

is not warranted and why amendment would be futile, nor has

Plaintiff even requested leave to amend in the first place. See

Food Holdings Ltd. v. Bank of Am. Corp., 423 F. App’x 73, 76 (2d

Cir. 2011) (summary order) (finding that the district court did

not abuse its discretion by declining to grant leave to amend,

in part because Plaintiff did not “submit a proposed amended

complaint or a motion to amend that identified and explained

their position”). The Court can identify no facts that Plaintiff

could plead to resurrect either his Dodd-Frank claim or his

criminal complaint. Accordingly, for the stated reasons, the

Court declines to grant Plaintiff leave to file an amended

complaint.

CONCLUSION

For the foregoing reasons, Defendant’s motion to

dismiss the Complaint is GRANTED, without leave to amend. The

Clerk of Court is respectfully directed to enter judgment in

favor of Defendant, to close the case, and to mail a copy of

this Memorandum and Order and the judgment to Plaintiff, and

note service on the docket by June 21, 2023.

SO ORDERED. □ owe

Hon. Kiyo A. Matsumoto

United States District Judge

Dated: June 20, 2023 Eastern District of New York

Brooklyn, New York

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