United States District Court, S.D. New York
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
Offices of Oliver Zhou (“Plaintiff” or
“Zhou”) alleges eleven different claims against
Citibank, N.A. (“Citibank” or
“Defendant”) and PNC Bank, N.A. for failure to
prevent Plaintiff's losses from what appears to have been
a counterfeit check scheme. Before the Court is
Defendant's motion to dismiss pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure.
reasons stated below, Defendant's motion is GRANTED.
a lawyer who has maintained an “IOLA Attorney Trust
Account” (the “Account”) at Citibank for
twenty years. Amended Compl. ¶ 2. At the time he opened
the Account, in 1996, Zhou signed a Citibank Signature Card
(the “Signature Card”) when opening the Account.
Id. at ¶ 2 & Ex. 1. The Signature Card
includes Zhou's signature and the Account's basic
identifying information- including, inter alia, its
branch number, account number, date of opening, and number of
18, 2013, Plaintiff deposited into the Account a
cashier's check displaying PNC Bank's logo and the
routing number 071921891 for $297, 500 (the
“Check”) that was given to him by a new purported
client. Amended Compl. at ¶¶ 5-6 & Ex. 5. He
alleges that the teller accepted the check “without
examining … to determine whether it was fake or real,
” and provided Zhou with a bank receipt stamped with a
notice of the funds' availability. Id. at
¶¶ 5-7, 8. The notice was dated June 18, 2013, and
stated that $297, 500 was “Available Today.”
Id. at Ex. 7. Zhou claims that he was not told that
the sum “may not be available for immediate
withdrawal.” Id. at ¶ 9.
next day, on June 19, 2013, Plaintiff asked John Huang
(“Huang”), a Citibank clerk, whether the Check
“was valid and equivalent to cash.” Id.
at ¶ 12. Huang further confirmed that the money had been
available since June 18, 2013. Id. Later that same
day, at the direction of his purported client, Zhou requested
a wire transfer of $287, 450 from the Account to a third
party's account in Japan (the “Transfer”).
Id. at ¶ 12 & Ex. 8. On June 20, 2013, PNC
Bank returned the Check to Citibank as
“Altered/Fictitious.” Consequently, Citibank
debited the Account for the $297, 500 check and also charged
Plaintiff a $12 service fee. Id. at Ex. 9.
24, 2013, one of Plaintiff's other clients notified him
that a check Zhou had issued to him had been dishonored due
to insufficient funds in the Account. Id. at ¶
17. Zhou immediately contacted Citibank and was informed for
the first time that PNC Bank had deemed the Check “a
forged or counterfeit instrument” and that it would not
be honored. Id. at ¶¶ 17, 21. Zhou
requested that the Transfer to the Japan account be
cancelled. Id. at ¶ 19. Although Citibank's
representatives told Zhou that they would report back,
Plaintiff claims that Citibank still has not contacted him.
Id. at ¶ 20. He further alleges that the
Transfer was never recalled, and that on June 26, 2013,
Plaintiff received written notice from Citibank that the
Check was returned as “bounced” because it was a
counterfeit check. Id.
18, 2015, Plaintiff brought an action in the New York County
Supreme Court against Citibank and PNC Bank. Docs. 1-2. On
July 7, 2015, then-defendant PNC Bank filed a Notice of
Removal to this Court with Citibank's consent, which was
granted on July 8, 2015. Id. Citibank and PNC Bank
filed motions to dismiss Plaintiff's initial complaint
following a pre-motion conference on September 18, 2015.
Docs. 25-30. On May 17, 2016, the Court issued an Opinion and
Order (“Zhou I”) dismissing PNC Bank as
a party to the instant action while granting Plaintiff leave
to amend only his claims for breach of contract and
fraudulent concealment against Citibank. Doc. 38. Defendant
filed the instant motion on August 1, 2016. Doc. 44.
Rule 12(b)(6), a complaint may be dismissed for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). When ruling on a
motion to dismiss pursuant to Rule 12(b)(6), the Court must
accept all factual allegations in the complaint as true and
draw all reasonable inferences in the plaintiff's favor.
Koch v. Christie's Int'l PLC, 699 F.3d 141,
145 (2d Cir. 2012). However, the Court is not required to
credit “mere conclusory statements” or
“threadbare recitals of the elements of a cause of
action.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)); see also Id. at 681 (citing
Twombly, 550 U.S. at 551). “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter…to ‘state a claim to relief that
is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible “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. (citing Twombly, 550
U.S. at 556). If the plaintiff has not “nudged [his]
claims across the line from conceivable to plausible, [the]
complaint must be dismissed.” Twombly, 550
U.S. at 570.
a complaint may also be dismissed if it contains claims that
were previously dismissed with prejudice. Samuels v. N.
Telecom, Inc., 942 F.2d 834, 836 (2d Cir. 1991)
(“A dismissal with prejudice has the effect of a final
adjudication on the merits favorable to defendant and bars
future suits brought by plaintiff upon the same cause of
action.”). In other words, Plaintiff is barred from
pleading claims in an Amended Complaint that were asserted in
the original complaint and were dismissed by a court.
Id.; see also NBN Broadcasting v. Sheridan
Broadcasting Networks, 105 F.3d 72 (2d Cir. 1997)
(finding that res judicata is created by a prior dismissal
with prejudice); Muhammad v. City of Peekskill, No.
06-CV-1899, 2008 WL 4452355, at *8 n.9 (S.D.N.Y. Sept. 30,
2008) (“[A] dismissal with prejudice causes claim
preclusion (res judicata) to attach.”).
asserts eleven claims against Citibank. Four of these claims
have already been dismissed with prejudice by this Court in
its May 17, 2016 Order and will not be reconsidered
here.See NBN Broadcasting v. Sheridan
Broadcasting Networks, 105 F.3d 72 (2d Cir. 1997)
(finding that res judicata bars claims already asserted and
addressed by a prior dismissal with prejudice); Muhammad
v. City of Peekskill, No. 06-Civ.-1899 (KMK), 2008 WL
4452355, at *8 n.9 (S.D.N.Y. Sept. 30, 2008) (“[A]
dismissal with prejudice causes claim preclusion (res
judicata) to attach.”). The balance of the claims are
for: (1) breach of contract; (2) fraudulent concealment; (3)
breach of privity ...