Zaerpour v. Bank of America Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

SOHEIL ZAERPOUR,

Plaintiff,

23-CV-0040 (LTS)

-against-

ORDER OF DISMISSAL

BANK OF AMERICA CORPORATION, ET AL.,

Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff invokes the Court’s federal question jurisdiction, and asserts claims for

violations of “securities laws” and “antitrust laws,” as well as claims based on “computer

crimes.” (ECF 7 at 2.) By order dated February 8, 2023, the Court directed Plaintiff to amend his

complaint to address deficiencies in his original pleading. Plaintiff filed an amended complaint

on February 24, 2023, and the Court has reviewed it. The action is dismissed for the reasons set

forth below.

STANDARD OF REVIEW

The Court has the authority to dismiss a complaint, even when the plaintiff has paid the

filing fee, if it lacks subject matter jurisdiction, Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,

583 (1999), or if the Court it determines that the action is frivolous, Fitzgerald v. First E. Seventh

Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam) (citing Pillay v. INS, 45 F.3d

14, 16-17 (2d Cir. 1995) (per curiam) (holding that Court of Appeals has inherent authority to

dismiss frivolous appeal)).

A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 324-25 (1989), abrogated on other grounds by Bell Atl. Corp. v.

Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)

(holding that “finding of factual frivolousness is appropriate when the facts alleged rise to the

level of the irrational or the wholly incredible”); Livingston v. Adirondack Beverage Co., 141

F.3d 434, 437 (2d Cir. 1998) (“[A]n action is ‘frivolous’ when either: (1) the factual contentions

are clearly baseless . . . ; or (2) the claim is based on an indisputably meritless legal theory.”)

(internal quotation marks and citation omitted).

The Court also may dismiss an action for failure to state a claim, “so long as the plaintiff

is given notice and an opportunity to be heard.” Wachtler v. County of Herkimer, 35 F.3d 77, 82

(2d Cir. 1994) (citation and internal quotation marks omitted). The Court is obliged, however, to

construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret

them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in

original).

BACKGROUND

In Plaintiff’s amended complaint, he brings suit against the following defendants: BNP

Paribas Group; BNP Paribas S.A; BNP Paribas Securities Corp.; BNP Paribas USA, Inc.; Bank

of America Corporation; Bank of America, N.A.; Barclays Bank PLC; Barclays PLC; Citibank

N.A.; Citigroup Global Markets, Inc.; Citigroup, Inc.; Credit Suisse Group AG; Credit Suisse

International; Credit Suisse Securities (USA) LLC; Deutsche Bank AG; Deutsche Bank

Securities Inc.; Goldman, Sachs & Co. LLC; HSBC Bank PLC; HSBC Bank USA, N.A.; HSBC

Holdings PLC; HSBC North America Holding Inc.; HSBC Securities (USA) Inc.; J.P. Morgan

Bank & Co.; J.P. Morgan Chase Bank, N.A.; J.P. Morgan Securities LLC; MUFG Bank, Ltd.,

MUFG Securities Americas Inc.; Merrill Lynch; Pierce Fenner & Smith, Inc.; Morgan Stanley;

Morgan Stanley & Co. International PLC; Morgan Stanley & Co., LLC; NatWest Markets

Securities Inc.; RBC Capital Markets LLC; Royal Bank of Scotland PLC;SG Americas

Securities LLC; Standard Chartered Securities (North America) Inc.; Société Générale S.A.;

Standard Chartered Bank; The Goldman Sachs Group, Inc.; The People of the United States of

America; The Royal Bank of Canada; UBS AG; UBS Group AG; and UBS Securities LLC.

Plaintiff makes the following allegations in his amended complaint. Since 2002, Plaintiff

has “been the target of a criminal conspiracy by the banking cartel.” (ECF 7 at 5.) Two federal

courts and the Federal Bureau of Investigation (FBI) have reviewed “proof” of the conspiracy,

which can be found in Plaintiff’s trading account statements. (Id.) This appears to be a reference

to Plaintiff’s prior suit in New Jersey, Zaerpour v. FBI, No.13-CV-06073 (D. N.J. Aug. 11,

2014),1 and in this district, Zaerpour v. JP Morgan Chase Bank, N.A., No. 21-CV-9680 (JPC)

(S.D.N.Y. Aug. 8, 2022).2 Plaintiff also filed another suit in this district, which was dismissed

based on his failure to pay the filing fee. Zaerpour v. UBS Group AG, No. 22-CV-7232 (LTS)

(S.D.N.Y.).3

1 In Zaerpour v. FBI, No.13-cv-06073-ES-JAD (D.N.J. Aug. 11, 2014), Plaintiff asserted

that the FBI had failed to act after he submitted proof of “illegal access to his FOREX

transactions and manipulation of the global FOREX market.” The district court adopted the

Magistrate Judge’s recommendation to dismiss the action on the grounds that the FBI is entitled

to sovereign immunity and has discretion in determining whether to initiate a prosecution. The

district court thereafter denied Plaintiff’s motion for reconsideration.

2 Defendants moved to dismiss Plaintiff’s complaint in Zaerpour v. JP Morgan Chase

Bank, N.A., No. 21-CV-9680 (JPC) (S.D.N.Y. Aug. 8, 2022), for improper service and on the

grounds that Plaintiff (1) lacked standing to pursue antitrust claims because he did not transact

directly with defendants; (2) failed to plead facts supporting a plausible inference of an antitrust

conspiracy and because his antitrust claims were impermissibly extra-territorial; (3) could not

state a constitutional tort claim because defendants’ conduct was not state action; (4) lacked

standing to assert violations of criminal laws; (5) could not, as a non-attorney, bring suit on

behalf of a class; (6) asserted claims that were time-barred; and (7) brought claims that should be

dismissed as frivolous. By order dated August 8, 2022, District Judge Cronan granted

defendants’ motion to dismiss for improper service, declined to extend the time for service, and

dismissed the action without prejudice, without reaching the merits.

3 In that action, Plaintiff included a document with a list of actions that would ensure that

the “Goyim will be so angry with their governments . . . .We will then appoint a descendant of

David to be king of the world.” Zaerpour, No. 22-CV-7232 (ECF 2 at 14.)

Between 2002 to 2006, when trading live, “all [of Plaintiff’s] trades became predictive of

the forex market movements at large for the entire duration of [his] forex trading activity.” (ECF

7 at 5.) Plaintiff acknowledges that this “is incredible” but contends that the proof of this is in his

account statements. Plaintiff asserts that “[t]he premise of this case is corruption at the DOJ, who

has apparently never acted to arrest or identify these individuals.” (Id.) He asserts that

“manipulation of forex rates also affected all US and global consumers and investors.” (Id. at 6.)

Plaintiff extolls his own credentials – noting that he was awarded his bachelor’s degree in

Switzerland in economics and management and earned a master’s degree “in record time” in the

United States. (Id. at 5.) He learned to trade after training with two financial institutions in New

York, speaks three or four languages fluently, and holds a certificate as a pilot. (Id.) Plaintiff also

discusses his Baha’i faith, which seeks “the unification of mankind” and the establishment of

world peace.4 (Id. at 6.)

Plaintiff seeks to recover the $50,000 in principal that he lost, as well as interest “for 20

years” and punitive damages. (Id.)

DISCUSSION

Even when read with the “special solicitude” due pro se pleadings, Triestman, 470 F.3d at

475, the allegations in Plaintiff’s amended complaint are insufficient to plausibly allege a

violation of his rights. The Court must not dismiss a complaint simply because the set of facts

presented by the plaintiff appears to be “unlikely.” Denton, 504 U.S. at 33. A finding of factual

frivolousness is warranted, however, when the facts alleged are “clearly baseless,” “fanciful,”

“fantastic,” “delusional” or wholly incredible, “whether or not there are judicially noticeable

4 In Zaerpour, No. 21-CV-9680, Plaintiff asserted that “the motive behind this crime is

Plaintiff’s plans for World Peace as communicated to the World leaders since 1985. . . .” (ECF 1

at 3.)

facts available to contradict them.” Denton, 504 U.S. at 32-33; see Livingston, 141 F.3d at 437.

Plaintiff alleges that his trading activity resulted in a loss to him of $50,000. (ECF 7 at 6.)

Plaintiff asserts, in a conclusory manner, that “all [of Plaintiff’s] trades became predictive of the

forex market movements at large for the entire duration of [his] forex trading activity.” (Id. at 5.)

The allegations that Plaintiff’s trading activity predicted the movements of the entire Forex

market, due to a banking cartel conspiracy, are wholly incredible. See Livingston, 141 F.3d at

437. There is no factual predicate or legal theory on which Plaintiff can rely to state a viable civil

claim arising from these allegations and assertions. The Court therefore dismisses Plaintiff’s

amended complaint as frivolous.

District courts generally grant a pro se plaintiff leave to amend a complaint to cure its

defects, but leave to amend may be denied if the plaintiff has already been given an opportunity

to amend but has failed to cure the complaint’s deficiencies. See Ruotolo v. City of New York, 514

F.3d 184, 191 (2d Cir. 2008); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because

Plaintiff’s amended complaint gives no indication that the defects can be cured with a further

amendment, the Court declines to grant Plaintiff another opportunity to amend.

CONCLUSION

Plaintiff’s amended complaint is dismissed as frivolous.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an

appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Judgment shall enter.

Dated: May 3, 2023

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge