United States District Court, S.D. New York
DCR MARKETING INC. et al., Plaintiffs,
JOSEPHINE LEE PEREIRA, Defendant.
OPINION AND ORDER
PAUL OETKEN, DISTRICT JUDGE.
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.
following facts are taken from the operative complaint (Dkt.
No. 21 (“Compl.”)) and are assumed true for
purposes of this motion to dismiss.
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.)
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.)
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).
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).
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).
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.
Lack of ...