Comunale v. Home Depot, U.S.A., Inc.

• Citation: 328 F.Supp.3d 70
• Decision Date: 10 September 2018
• Docket Number: 6:18-CV-06066 EAW
• Parties: Anthony F. COMUNALE, Plaintiff, v. HOME DEPOT, U.S.A., INC., and Citibank, N.A., Defendants.
• Court: U.S. District Court — Western District of New York

328 F.Supp.3d 70

Anthony F. COMUNALE, Plaintiff,

v.HOME DEPOT, U.S.A., INC., and Citibank, N.A., Defendants.

6:18-CV-06066 EAW

United States District Court, W.D. New York.

Signed September 10, 2018

Michael L. Calvete, North Chili, NY, for Plaintiff.

Barry Jay Glickman, Zeichner Ellman & Krause LLP, New York, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Anthony F. Comunale ("Plaintiff") filed this action in New York State Supreme Court on October 13, 2017, alleging damages resulting from the "willful[ ] and reckless[ ]" conduct of Defendants Home Depot, U.S.A., Inc. ("Home Depot") and Citibank, N.A. ("Citibank") (collectively, "Defendants"). (Dkt. 1-2). Specifically, Plaintiff alleges that Defendants disregarded evidence of fraudulent credit activity in his name, and have continued to demand payment for expenses accrued without his consent. (Id. at 5-6). As a result, Plaintiff claims that he has "suffered economic loss" and that his "credit has been damaged." (Id. at 6). On January 22, 2018, pursuant to 28 U.S.C. § 1332(a), Defendants removed the action to this Court based upon diversity jurisdiction. (Dkt. 1).

Presently before the Court is Defendants' motion to dismiss Plaintiff's complaint for failure to state a claim. (Dkt. 4). For the following reasons, Defendants' motion is granted, and Plaintiff's complaint is dismissed.

FACTUAL BACKGROUND ¹

On or about June 16, 2013, one or more persons applied for a credit account in Plaintiff's name at Home Depot without Plaintiff's knowledge or consent. (Dkt. 1-2 at ¶ 4). Citibank services Home Depot's credit accounts. (Id. at ¶ 3). The unidentified individual or individuals used Plaintiff's Social Security Number and other personal information to establish the credit account in Plaintiff's name. (Id. at ¶¶ 4-5). Unbeknownst to Plaintiff, the unidentified party or parties also charged various items to the account. (Id. at ¶ 6). Someone other than Plaintiff made installment payments to this account for about a year, at which time all such payments ceased. (Id. at ¶ 7).

Sometime within or about the month of September 2014, Plaintiff's former wife showed Plaintiff a statement for the above account, which indicated that a balance of $6,541.25 was due. (Id. at ¶ 8). Plaintiff then contacted "one or both" Defendants to notify them that he had no knowledge of this account, that it was fraudulently established, and that the charges were incurred without his consent or knowledge. (Id. at ¶ 9). Since September 2014, Plaintiff has provided additional information to "one or both" Defendants, allegedly demonstrating that the account was not established by him. (Id. at ¶ 10). Plaintiff has also complied with all information requests solicited by either Home Depot or Citibank regarding a fraud investigation related to this credit account. (Id. at ¶ 11).

Nevertheless, "one or both" Defendants have repeatedly told Plaintiff that he owes the entire balance due on the account. (Id. at ¶ 12). Plaintiff alleges that in doing so, "one or both Defendants have willfully and recklessly disregarded the evidence of fraud provided to Defendants by Plaintiff." (Id. at ¶ 13). Plaintiff further alleges that, since September 2014, "one or both" Defendants have repeatedly reported Plaintiff as delinquent to multiple credit reporting agencies. (Id. at ¶ 14). Even after Plaintiff "advised credit reporting agencies that the account had been fraudulently established in his name and that he was not responsible for any portion of the account," Defendants informed "credit report agencies that in fact the account was Plaintiff's obligation," even though "they knew or should have known that it was not." (Id. at ¶ 15). Defendants have also continued to request that Plaintiff pay the deficiencies on the account. (Id. at ¶ 16).

Plaintiff asserts that his credit has been damaged, and that he has suffered economic loss as a result of Defendants' actions. (Id. at ¶ 17). Plaintiff claims that because Defendants have provisioned erroneous information to the credit reporting agencies, he has been unable to secure any credit, which has cost him various business opportunities. (Id. ).

PROCEDURAL HISTORY

On January 26, 2018, Defendants moved to dismiss Plaintiff's complaint for failure to state a claim. (Dkt. 4). Plaintiff opposed Defendants' motion. (Dkt. 10). Defendants argue that Plaintiff fails to specify a "cognizable theory of liability," and therefore, he does not satisfy the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. (Dkt. 4-4 at 7-8); see Fed. R. Civ. P. 8(a). Defendants also assert that even if Plaintiff properly articulated common law claims against them, such claims are preempted by the federal Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. ("FCRA"). (Dkt. 4-4 at 9-10). Finally, Defendants argue that any credit reporting claims Plaintiff might have are time-barred by the FCRA's two-year statute of limitations. (Dkt. 4-4 at 12).

On July 10, 2018, the Court heard argument on Defendants' motion to dismiss. The Court sua sponte raised the issue of its subject matter jurisdiction by informing the parties of an error in the notice of removal. The Court permitted Defendants to file supplemental papers to cure the defect. The Court otherwise reserved decision on Defendants' motion. On July 16, 2018, Defendants submitted a declaration in further support of their motion. (Dkt. 14).

DISCUSSION

I. Subject Matter Jurisdiction

A. General Principles

"Federal courts have a duty to inquire into their subject matter jurisdiction sua sponte, even when the parties do not contest the issue." D'Amico Dry Ltd. v. Primera Mar. (Hellas) Ltd. , 756 F.3d 151, 161 (2d Cir. 2014). "It is well-settled that the party asserting federal jurisdiction bears the burden of establishing jurisdiction." Blockbuster, Inc. v. Galeno , 472 F.3d 53, 57 (2d Cir. 2006). "In a case removed to federal court from state court, the removal statute is to be interpreted narrowly, and the burden is on the removing party to show that subject matter jurisdiction exists and that removal was timely and proper." Winter v. Novartis Pharm. Corp. , 39 F.Supp.3d 348, 350 (E.D.N.Y. 2014) (citing Lupo v. Human Affairs Int'l, Inc. , 28 F.3d 269 (2d Cir. 1994) ). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).

B. Diversity Jurisdiction

"Diversity jurisdiction exists where the parties are citizens of different states and the amount in controversy exceeds $75,000." Ceglia v. Zuckerberg , 772 F.Supp.2d 453, 455 (W.D.N.Y. 2011). " ‘[C]itizens of different States’ means that there must be complete diversity, i.e., that each plaintiff's citizenship must be different from the citizenship of each defendant." Hallingby v. Hallingby , 574 F.3d 51, 56 (2d Cir. 2009) ; see Doctor's Assocs., Inc. v. Distajo , 66 F.3d 438, 445 (2d Cir. 1995) ("It is a long-settled rule that in order to invoke diversity jurisdiction, the petitioner must show ‘complete diversity’—that is, that it does not share citizenship with any defendant."). "A person's citizenship for purposes of diversity is based upon his domicile." Ceglia , 772 F.Supp.2d at 455. "For purposes of determining diversity, 28 U.S.C. § 1332(c) provides that ‘a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.’ " Sty-Lite Co. v. Eminent Sportswear Inc. , 115 F.Supp.2d 394, 398 (S.D.N.Y. 2000). In this Circuit, "a national bank is a citizen only of the state listed in its articles of association as its main office." OneWest Bank, N.A. v. Melina , 827 F.3d 214, 219 (2d Cir. 2016).

C. The Court Has Subject Matter Jurisdiction Over This Action

Defendants sought to remove this action to federal court based upon diversity jurisdiction. (Dkt. 1 at ¶¶ 2-5). In doing so, Defendants alleged that Plaintiff is domiciled in the State of New York, and that neither Citibank nor Home Depot are citizens of New York State for diversity purposes. (Id. at ¶¶ 3-4). Defendants sufficiently alleged that Citibank, a national banking association, has its "main office" located in the State of South Dakota, and thus, it is a citizen of that State for diversity purposes. (Id. at ¶ 5). Home Depot, on the other hand, is a corporation. As such, it is a citizen of the State "by which it has been incorporated and of the State where it has its principal place of business." Sty-Lite Co. , 115 F.Supp.2d at 398 (quoting 28 U.S.C. § 1332(c) ). Defendants alleged that Home Depot is a citizen of the State of Delaware because it is incorporated under the laws of that State. (Dkt. 1 at ¶ 5). However, Defendants initially failed to set forth any allegations concerning Home Depot's principal place of business. See Neat-N-Tidy Co. v. Tradepower (Holdings) Ltd. , 777 F.Supp. 1153, 1156 (S.D.N.Y. 1991) ("If a complaint fails to allege a corporation's principal place of business, and if there is a possibility that a party's citizenship, through its principal place of business, might destroy diversity, then the pleading is insufficient to establish diversity jurisdiction.").

Nevertheless, the Court granted Defendants leave to file additional papers in support of this Court's subject matter jurisdiction because "[w]hen diversity is not absent from a notice of removal but is defectively alleged, courts typically permit the removing party to amend its notice of removal." Linium, LLC v. Bernhoit , No. 17-CV-0200 (LEK)(CFH), 2017 WL 2599944, at *3 (N.D.N.Y. June 15, 2017) (quotations omitted) (collecting cases). On July 16, 2018, Defendants submitted an attorney declaration affirming that Home Depot is incorporated under the laws of the State of Delaware, and that it maintains a principal place of business in Atlanta, Georgia. (Dkt. 14 at ¶ 3). Defendants also confirmed that Citibank is a citizen of the State...