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United States District Court, S.D. New York

February 17, 2004.

HERNAN REY-WILLIS, Plaintiff, -against- CITIBANK, N.A., Defendant

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


By Opinion and Order dated July 23, 2003, this Court dismissed Rey-Willis's complaint for failure to plead his claims with particularity under Federal Rule of Civil Procedure 9(b).*fn1 On November 5, 2003, Rey-Willis filed an amended complaint alleging one claim of deceptive business practices under the New York Consumer Protection Act.*fn2 Rey-Willis chose not to replead his claim of commercial bad faith. Once again, Citibank has moved to dismiss.*fn3 For the Page 2 reasons that follow, that motion is granted; the amended complaint must be dismissed.*fn4

  The facts of this case are fully set forth in the prior Opinion and need not be repeated at any great length. In essence, Rey-Willis alleges that Citibank engaged in deceptive business practices when it allowed him to transfer funds from his New York account to his Argentine account without telling him that the Argentine government was about to enact the so-called "El Corralito" orders.*fn5 The El Corralito orders imposed restraints on a bank customer's ability to withdraw funds from Argentine banks and converted all U.S. dollar accounts to Argentine pesos, with a resultant loss of value and stability.*fn6 Page 3

  The elements of a claim for deceptive business practices under section 349 of the General Business Law are: (1) a practice that was misleading in a material respect, and (2) a resulting injury to the claimant.*fn7 Because section 349 requires that the plaintiff be misled — in essence, defrauded — a section 349 claim must be pled in accordance with Rule 9(b).*fn8 In addition, because section 349 is designed to address "broad consumer-protection concerns,"*fn9 a plaintiff bringing a section 349 claim must, "at the threshold, charge conduct that is consumer oriented. . . . [Defendant's] acts or practices must have a broad impact on consumers at large."*fn10

  Rey-Willis's initial complaint was dismissed because he failed to allege the first element — a misleading practice — with sufficient particularity. "Although the Complaint indicate[d] the approximate date, place, and content of Citibank's fraudulent omissions, it fail[ed] to identify the persons who made the Page 4 alleged misrepresentation. . . . Because he does not specifically identify, by name or otherwise, the identity of the persons who engaged in fraudulent activity, Rey-Willis fails to meet the heightened pleading standard of Rule 9(b)."*fn11 In an attempt to cure this defect, the amended complaint now alleges that Rey-Willis was defrauded in a series of phone calls with "as of yet unidentified"*fn12 Citibank account representatives that "were reachable by customers through the phone number 813-604-3000 and were based in Tampa, Florida."*fn13

  If this is true, as I must assume, then Rey-Willis's amended complaint does not, as a matter or law, state a claim under section 349, which requires that the act of deception take place in New York.*fn14 The alleged misleading conversations took place between Citibank account representatives in Florida and Rey-Willis, who resided in Argentina at the time.*fn15 Thus, if the Florida-based account representatives are responsible for the fraud, then Rey-Willis has no claim Page 5 under section 349.

  Nonetheless, Rey-Willis argues that his allegations are sufficient. "Plaintiffs account was still a New York account. The decisions were still made in New York, even if they were communicated to Rey-Willis through employees in Tampa who were able to speak Spanish"*fn16 But if it is true that the Florida-based account representatives were merely messengers — and the decision-makers in New York are the ones truly responsible for the fraud — then the amended complaint suffers from the same infirmity as the initial complaint: Rey-Willis fails to identify, by name or otherwise, the identity of the persons who engaged in fraudulent activity.*fn17 Page 6

  Rey-Willis's allegations with respect to the New York-based decision-makers are exceedingly vague. He alleges, for example, that "Citibank knew about the government's plans to enact" El Corralito,*fn18 that "Citibank had inside information,"*fn19 that Defendant engaged in deceptive acts or practices,"*fn20 and that Defendant's unlawful deceptive acts or practices were willful and knowing and committed to increase Citibank's profits."*fn21 The most specific (and only) allegation regarding the decision-makers is an oblique reference to "New York executives and employees."*fn22 None of these allegations are sufficient to put Citibank on notice of who precisely is being accused of misleading Rey-Willis. This deficiency remains even after Citibank provided Rey-Willis with "targeted discovery . . . specifically intended to aid him in drafting his amended complaint."*fn23 Accordingly, Rey-Willis's allegations fail to meet the heightened Page 7 pleading standard of Rule 9(b) and his claim for deceptive business practices, and this case, must be dismissed.


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