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Grimm v. Citibank

November 14, 2008


The opinion of the court was delivered by: Judge Nora Barry Fischer



Plaintiffs Josephine Grimm and Lester Grimm (hereinafter "Plaintiffs") filed the instant civil action against Defendant Citibank (South Dakota), N.A., (hereinafter "Citibank") alleging eight (8) causes of action arising out of alleged fraudulent activity associated with credit card accounts Plaintiffs held with Citibank. Plaintiffs allege: (1) breach of implied contract; (2) negligence; (3) fraudulent misrepresentation; (4) negligent misrepresentation; (5) breach of fiduciary duty; (6) violations of the Pennsylvania Unfair Trade Practices/Consumer Protection Law, 73 P.S. § 201, et seq. ("UTP/CPL"); (7) violation of the Truth in Lending Act, 15 U.S.C. § 1700, et seq. ("TILA") and the Consumer Credit Protection Act 15 U.S.C. § 1643 ("CCPA"); and (8) negligence per se. (Docket No. 1, Exhibit A). Pending before the Court is Citibank's Motion to Dismiss Plaintiffs' Amended Complaint [3]. For the reasons stated below, the Court GRANTS said motion, with prejudice, with respect to Counts I, II, III, IV, V, VII and VIII of Plaintiffs' Amended Complaint. In addition, the Court GRANTS Citibank's Motion to Dismiss, without prejudice, with respect to Couth VI of Plaintiffs' Amended Complaint.


Plaintiffs filed their Amended Complaint on May 16, 2008 in the Court of Common Pleas of Westmoreland County, Pennsylvania.*fn1 (Docket No. 1, Exhibit A). On June 9, 2008, Citibank timely removed the action to federal court based on this Court's federal question jurisdiction pursuant to 28 U.S.C. § 1331, in that Plaintiffs' claims assert violations of TILA and the CCPA, (Docket No. 1). The case was then assigned to Judge William Standish of the United States District Court for the Western District of Pennsylvania. Thereafter, on July 7, 2008, Citibank filed a Motion to Dismiss Plaintiffs' Amended Complaint. (Docket No. 3). In response, on July 30, 2008, Plaintiffs filed a Response to Citibank's Motion to Dismiss Plaintiffs' Amended Complaint. (Docket No. 11). On August 5, 2008, this case was reassigned to Judge Nora Barry Fischer. (Docket No. 13). Subsequently, on August 19, 2008, Plaintiffs filed a Supplement to their Response to Citibank's Motion to Dismiss. (Docket No. 18). The Court conducted a Case Management Conference and heard argument on any pending motions on September 4, 2008. (Docket No. 22). During said conference, Plaintiffs requested leave to file a supplemental brief in regard to the pending motion, which the Court granted. (Docket No. 24). Thereafter, on September 15, 2008, Plaintiffs filed a Second Supplement to their Response to Citibank's Motion to Dismiss. ( Docket No. 28). Finally, on October 6, 2008, Plaintiffs and Citibank each filed a final supplement to their respective briefs, addressing choice of law issues. ( Docket Nos. 32 and 33).The motion is now ripe for disposition.


Statement of Facts Between October of 2005 and September of 2006, Plaintiffs allege that they held "at least" three (3) credit card accounts with Citibank.*fn2 (Docket No. 1, Exhibit A at ¶5).*fn3 During this time period, Plaintiffs contend that, "upon information and belief," there were fraudulent charges made to their credit cards.(Id. at ¶6). During the oral argument heard by this Court, Plaintiffs' counsel informed the Court that the fraudulent transactions associated with Plaintiffs' Citibank credit cards amounted to approximately $250. (Transcript of Oral Argument ("Arg't. Trans.") dated September 4, 2008 at 11: 21).

Plaintiffs allege that they were physically disabled while the fraudulent activity associated with their credit card accounts occurred and thus, were unable to detect the fraudulent charges until August of 2006.*fn4 (Docket No. 1, at ¶¶7-8). According to letters from their treating physicians attached to the Amended Complaint, Mr. Grimm suffers from severe cardiac problems, including the sequelae of three cerebral vascular accidents ("CVA"),*fn5 while Mrs. Grimm suffers from fourth stage Lyme disease,*fn6 depression, and neurological problems. (Id. at Exhibits 1-3).

After detecting the fraudulent activity, Plaintiffs notified Citibank and the Secret Service of the fraudulent charges. (Id. at ¶¶8-9). A special agent with the Secret Service conducted an investigation into the fraudulent activity associated with Plaintiffs' credit card accounts. In a letter addressed to Plaintiffs' counsel dated December 11, 2006, the Secret Service agent stated that the Plaintiffs were defrauded by unknown individuals in an amount in excess of $600,000.00. (See id., Exhibit 4). The agent further stated that it appeared that Plaintiffs were defrauded through the use of hidden computer software known as "spyware" embedded within,*fn7 a subsidiary of Belle Rock Entertainment, an online gambling website which Mrs. Grimm frequented.*fn8

(Id.). In fact, during the course of the Secret Service's investigation, Mrs. Grimm claimed that she voluntarily submitted personal information to in order to download online gambling software. (Id.). Subsequently, numerous individual credit cards were obtained by unidentified third parties in Mrs. Grimm's name, and these credit cards accumulated large amounts of unauthorized charges. (Id.). Plaintiffs allege that Citibank was obligated to provide fraud protection on their Citibank credit card and failed to satisfy this obligation by overlooking the fraudulent activity and refusing to compensate Plaintiffs for the fraudulent charges. (Id. at ¶¶11-12).

The Citibank Agreements*fn9

Plaintiffs have attached to their Amended Complaint the credit card agreements which they claim govern their accounts with Citibank. (See id., Exhibit 5-7). Plaintiffs claim that, upon opening the Citibank credit cards, they "entered into a contract with Citibank." (Id. at ¶14). Furthermore, Plaintiffs claim that they "put their full faith and trust in Citibank to act in compliance with the terms and conditions of the [c]ontract." (Id. at ¶16). The contractual language pertinent to the instant dispute is detailed below.

Under the bold-faced heading "Your Account" on page two (2), the agreement states:

[y]ou agree to use your account in accordance with this Agreement. This Agreement is binding on you unless you cancel your account within 30 days after receiving the card and you have not used or ...

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