United States District Court, E.D. New York
February 3, 2004.
JAMIE GARAY, Plaintiff, -against- U.S. BANCORP, Defendant
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
On July 15, 2002, Jamie Garay, ("Garay" or the "plaintiff") commenced
this action against U.S. Bancorp (the "defendant"), asserting seven
causes of action, three claims relying on criminal violations and four
state common law claims: (1) aiding and abetting identity theft; (2)
aiding and abetting mail fraud; (3) obstructing justice; (4) gross
negligence; (5) failure to provide due diligence; (6) aiding and abetting
in a conspiracy to commit conversion; and (7)
invasion of privacy. Pending before the Court is the defendant's
motion for summary judgment dismissing the complaint on the ground that
the three claims asserting criminal violations do not afford a private
right of action. In addition, the defendant asserts that there is no
legal basis to support the plaintiff's four state common law claims.
The following facts are undisputed unless otherwise indicated. In 2001,
an imposter stole Garay's identification information, including her name,
date of birth, social security number, and address. Based on the stolen
information, the imposter applied for a credit card from U.S. Bank
National Association ND ("U.S. Bank"), a subsidiary of U.S. Bancorp.
In that same year, U.S. Bank received, via the internet, an application
for a WorldPerks Visa business credit card from a company called the
Ultimate Roots Inc. The application was transferred to a U.S. Bank data
entry form. The defendant explains that, upon receipt of a business
credit card application, it was U.S. Bank's standard procedure to attempt
to verify certain information associated with the business listed on the
application, including the owner and the address of the business, by
consulting a Dun & Bradstreet Report. The defendant contends that no
Dun & Bradstreet Report existed for Ultimate Roots Inc.
According to the defendant, to determine whether to issue a credit card
a business card application, U.S. Bank's underwriting practices
focused on the verification of certain information relating to the
authorizing officer indicated in the application because business cards
function very similarly to consumer credit cards. The authorizing officer
was identified as the plaintiff. The application also listed: (a) 16
Hallock Meadow Drive, Stonybrook, New York as the authorizing officer's
address; (b) October 13, 1958 as the authorizing officer's date of birth;
and (c) the authorizing officer with Garay's social security number.
Because the computer program U.S. Bank used at that time to initially
process internet-based credit card applications deleted leading zeros
from the social security number, the leading zero in the authorizing
officer's social security did not appear on the application.
Nevertheless, U.S. Bank received a nine digit social security number for
the authorizing officer and used the entire nine digit number to process
The defendant further contends that, to verify the information relating
to the authorizing officer listed on the application, U.S. Bank obtained
an electronic copy of an Equifax Consumer Credit Report in the name of
"Jamie Garay." By comparing the information listed on the application
with the information listed in the Equifax Consumer Credit Report, U.S.
Bank verified the information relating to the authorizing officer, which
included the authorizing officer's name, address, date of birth and
social security number. U.S. Bank also reviewed the credit history of the
authorizing officer contained in the Equifax
Consumer Credit Report. In sum, the defendant contends that it
followed all the regular procedures to investigate a new account.
In response, the plaintiff contends that neither U.S. Bank nor U.S.
Bankcorp ever tried to obtain a Dun & Bradstreet report about
Ultimate Roots Inc. In addition, the plaintiff disputes the defendant's
assertion that the name "Jamie Garay" was linked to the authorizing
officer. The plaintiff further contends that the defendant failed to
verify the address, date of birth, and social security number of the
On an unspecified date, U.S. Bank issued a WorldPerks Visa business
credit card with a credit limit in the amount of $20,000 to the imposter
in the name of "Jamie Garay" for Ultimate Roots Inc. Sixteen transactions
were executed with use of the credit card, totaling in the amount of
$20,098.05. On or about March 19, 2001, the account became delinquent.
On or about July 24, 2001, the plaintiff informed U.S. Bank that she
did not open the account and that the account was fraudulent. Soon
thereafter, U.S. Bank opened an internal fraud case to investigate the
facts and circumstances surrounding the application for and use of the
credit card. U.S. Bank reversed all of the charges associated with the
account, including the purchase charges, finance charges, late payment
fees and over-the-limit fees, causing U.S. Bank to absorb the loss of
more than a sum of $20,000. Pursuant to
its policy, if an account is delinquent for more than 150 days, the
defendant reports it to a credit reporting agency. However, because the
account here was less than 150 days past due, U.S. Bank never reported
any delinquency to any credit reporting agency.
Sometime after July 24, 2001, Garay contacted U.S. Bank seeking
documents related to the account. Soon thereafter, at the plaintiff's
request, U.S. Bank sent to her eight account statements.
On or about August 2, 2003, the defendant issued a credit card to her
home address but failed to follow the fraud alert on her credit file to
personally contact her at a specific telephone number before issuing a
credit card. The plaintiff contends that the defendant's failure to
follow the fraud alert is further evidence that the it fails to follow
procedures to investigate a new account.
A. Standard of Review
A motion for summary judgment should be granted only when "there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322,
91 L.Ed.2d 265, 106 S.Ct. 2548 (1986). The moving party bears the burden of
establishing the absence of a genuine issue of material fact. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256,
91 L.Ed.2d 202, 106 S.Ct. 2505 (1986). Once the moving party has met this
burden, the non-moving party "must set forth specific facts showing
that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
When deciding a motion for summary judgment, the Court must view the
evidence in the light most favorable to the non-moving party and must
draw all permissible inferences from the submitted affidavits, exhibits,
interrogatory answers, and depositions in favor of that party. See
Anderson, 477 U.S. at 155; Van v. City of New York,
72 F.3d 1040, 1048-49 (2d Cir. 1995). In the case of a pro se
party, the court must "read the pleadings of a pro se plaintiff
liberally and interpret them `to raise the strongest arguments that they
suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.
1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994)). Nevertheless, pro se status "`does not exempt a party
from compliance with relevant rules of procedural and substantive law.'"
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quoting
Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)).
Notably, the plaintiff mistakenly sets forth in her memorandum of law
in opposition to the instant motion the standard for a motion to dismiss
instead of a motion for summary judgment. In this regard, the Court also
notes that the defendant included with its motion a "Notice to Pro Se
Litigant Opposing Motion for Summary Judgment" which informed Garay that
failure to oppose the motion may result in a dismissal of the complaint.
The defendant also affixed to the Notice a copy of Fed.R.Civ.P. 56.
The plaintiff's submission of her counterstatement to the defendant's
56.1 Statement indicates that she was sufficiently
apprised of the procedure and its consequences.
B. The Claim for Aiding and Abetting Identity Theft,
18 U.S.C. § 1028
Pursuant to the Identity Theft and Assumption Deterrence Act of 1998,
18 U.S.C. § 1028, Garay asserts that the defendant aided and abetted
in committing identity theft by issuing a credit card in her name to the
imposter who applied for, received and used the credit card. This claim
is without merit because the statute is criminal in nature and provides
no private right of action. See, e.g., Rahmani v. Resorts Int'l
Hotel, Inc., 20 F. Supp.2d 932, 937 (E.D. Va. 1998) (holding that
18 U.S.C. § 1028 provides no private cause of action); see also
Vasille v. Dean Witter Reynolds, Inc., 20 F. Supp.2d 465, 477
(E.D.N.Y. 1998) ("It is also a general precept of criminal law that
unless the statute specifically authorizes a private right of action,
none exists."). Moreover, the plaintiff has failed to set forth any basis
establishing that Congress intended a private right of action under this
statute. See Suter v. Artist M., 503 U.S. 347, 363,
118 L.Ed.2d 1, 112 S.Ct. 1360 (1992) (stating that the party seeking to
imply a private right of action bears the burden to show that Congress
intended to make one available). Thus, this claim is dismissed.
C. The Claim for Aiding and Abetting Mail Fraud,
18 U.S.C. § 1341
Pursuant to 18 U.S.C. § 1341, the plaintiff claims that the
defendant aided and abetted mail fraud, by mailing "fraudulent credit
card to an address that they could not
verify." It is well-established that there is no private right of
action for mail fraud. See Silva v. Neumel, 152 F.3d 920 (2d
Cir. 1998) (affirming dismissal of claim for mail fraud because
18 U.S.C. § 1341 does not create a private right of action); Pharr v.
Evergreen Gardens, Inc., No. 03 Civ. 5520, 2004 U.S. Dist. LEXIS
158, at *3 n.2 (S.D.N.Y. Jan. 5, 2004) (holding that "there is no private
right of action for violations of the federal mail-fraud statute.");
Fitzgerald v. Pharmacia Corp., No. 01 Civ. 6974, 2002 U.S.
Dist. LEXIS 7761, at *5 n.2 (S.D.N.Y. Apr. 29, 2002) ("There is no
private right of action for mail fraud under 18 U.S.C. § 1341.").
Because this statute does not provide a private right of action, Garay
may not assert a claim for aiding and abetting pursuant to this statute.
Therefore, this claim is dismissed.
D. The Claim for Obstruction of Justice
The plaintiff claims that the defendant obstructed justice by refusing
to furnish her or the police with documents relating to the account
opened by the alleged imposter. Because obstruction of justice is a
criminal matter, there is no private cause of action. See
Scientronic Corp. v. AT&T Incorp. Corp., No. 91 Civ. 1148, 1993
U.S. Dist. LEXIS 20456, at *11 (E.D.N.Y. May 24, 1993) (citing
United States ex rel. Farmer v. Kaufman, 750 F. Supp. 106, 108
(S.D.N.Y. 1990)); see also Langella v. United States, No. 01
Civ. 11583, 2002 U.S. Dist. LEXIS 10039, at * (S.D.N.Y. June 4, 2002)
(stating that obstruction of justice may be enforced only by the
Department of Justice). As such this claim fails, as a matter of
law, and is therefore dismissed.
E. The Remaining State Law Claims
Garay also asserts a number of state law claims, including claims for
negligence, "failure to provide due diligence," and "aiding and abetting
in a conspiracy to commit conversion," and "invasion of privacy." At this
stage of the case, because her federal claims are dismissed, the Court
declines to exercise supplemental jurisdiction over her remaining state
law claims and need not consider the defendant's remaining arguments.
See Jinks v. Richland County, No. 02-258, 2000 U.S. Dist. LEXIS
3241, at *6, 55 L.Ed.2d 631, 123 S.Ct. 1667 (2003); see also
28 U.S.C. § 1367(c); Marcus v. AT&T Corp., 138 F.3d 46,
57 (2d Cir. 1998) ("In general, where the federal claims are dismissed
before trial, the state claims should be dismissed as well.") (citing
Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994)). Thus,
the state law claims are dismissed without prejudice. Accordingly, the
defendant's motion for summary judgment dismissing the complaint in its
entirety is granted.
F. Leave to Amend
When addressing a pro se complaint, a district court should
not dismiss without granting leave to amend at least once when a liberal
reading of the complaint gives any indication that a valid claim might be
stated. Thompson v. Carter, 284 F.3d 411, 419 (2d Cir. 2002)
(citing Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
"`[f]utility' is a valid reason for denying a motion to amend . . .
where it is `beyond doubt that the plaintiff can prove no set of facts in
support' of his amended claims." Pangburn v. Culbertson,
200 F.3d 65, 70-71 (2d Cir. 1999) (citations omitted).
While the plaintiff does not seek leave to file an amended complaint,
the Court assumes because of her pro se status that leave would
be sought. However, even with the most liberal reading of the complaint,
the Court finds that the complaint is completely devoid of any viable
cause of action and any amendment would therefore be futile. Accordingly,
the Court declines to grant leave to amend in this case.
Based on the foregoing, it is hereby
ORDERED, that defendant's motion for summary judgment
dismissing the complaint is GRANTED; and it is further
ORDERED, that the Clerk of the Court is directed to close
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