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DCR Marketing Inc. v. Pereira

United States District Court, S.D. New York

January 8, 2020

DCR MARKETING INC. et al., Plaintiffs,
v.
JOSEPHINE LEE PEREIRA, Defendant.

          OPINION AND ORDER

          J. PAUL OETKEN, DISTRICT JUDGE.

         In this case, two corporations seek recovery of funds transferred out of their bank accounts by Josephine Lee Pereira. Pereira, who was entrusted with online login credentials for all three accounts, allegedly used the access to change the login credentials and to redirect funds to her personal accounts. The corporations bring claims under both federal and state law. For the reasons that follow, the federal causes of action are dismissed for failure to state a claim. And the Court declines to exercise supplemental jurisdiction over the remaining state-law claims. Accordingly, the complaint is dismissed in its entirety.

         I. Background

         The following facts are taken from the operative complaint (Dkt. No. 21 (“Compl.”)) and are assumed true for purposes of this motion to dismiss.

         Plaintiffs DCR Strategies Legal Inc. and DCR Marketing Inc. (collectively, “DCR”) are both New York corporations that provide prepaid card services to merchants. (Compl. ¶¶ 1-2.) DCR formerly employed Defendant Josephine Lee Pereira, a resident of New York, as an attorney. (Compl. ¶ 3.)

         DCR maintained bank accounts with Citibank, Bank of America, and PNC Financial Services Group. (Compl. ¶¶ 14, 29, 40.) Pereira possessed online login credentials for all three bank accounts. (Compl. ¶¶ 16, 31, 42.) Between 2017 and 2019, Pereira changed the login credentials for all three accounts and transferred money from those accounts to her personal accounts. (Compl. ¶¶ 21, 34, 44.) She did so without authority or permission from DCR. (Compl. ¶¶ 22, 34, 44.) Across the three accounts, the transferred amounts totaled over $500, 000. (Compl. ¶¶ 26, 38, 48.)

         DCR has commenced suit against Pereira, bringing claims under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030 et seq. DCR also brings state-law claims for conversion. Finally, DCR seeks declaratory and injunctive relief. Pereira has moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

         II. Legal Standard

         “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A court lacks federal-question jurisdiction under 28 U.S.C. § 1331 if the plaintiff has failed to plead a colorable claim arising under the Constitution or laws of the United States. A claim is not “colorable” if it is “immaterial and made solely for the purpose of obtaining jurisdiction” or “wholly insubstantial and frivolous.” Bell v. Hood, 327 U.S. 678, 682-83 (1946).

         To withstand a motion to dismiss under Rule 12(b)(6), a plaintiff must plead sufficient factual allegations “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible if the well-pleaded factual allegations of the complaint, presumed true, permit the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

         III. Discussion

         Pereira has moved to dismiss the CFAA claims both under Rule 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(6) for failure to state a claim. And Pereira has urged this Court to decline to exercise supplemental jurisdiction over the state-law claims under 28 U.S.C. § 1367(c)(3). Each ground for dismissal is discussed in turn.

         A. CFAA Claims

         1. Lack of ...


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