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Gerald Rosario Riviello, Jr., On Behalf of Himself and Those Similarly Situated v. Tobyhanna Army Depot Federal Credit Union and John Does 1-10 and Xyz

August 5, 2011

GERALD ROSARIO RIVIELLO, JR., ON BEHALF OF HIMSELF AND THOSE SIMILARLY SITUATED,
PLAINTIFFS,
v.
TOBYHANNA ARMY DEPOT FEDERAL CREDIT UNION AND JOHN DOES 1-10 AND XYZ CORPORATIONS, DEFENDANTS.



The opinion of the court was delivered by: (judge Caputo)

MEMORANDUM

Defendant Tobyhanna Army Depot Federal Credit Union moves to strike and for partial dismissal of plaintiff Riviello's class allegations. Riviello has filed a purported class-action suit over ATM fees he claims violate the Electronic Funds Transfer Act ("EFTA"). Tobyhanna argues the class claims do not meet the predominance and superiority requirements of Federal Rule of Civil Procedure 23(b)(3). The Court disagrees and will deny Tobyhanna's motion.

BACKGROUND

Riviello alleges there was no external fee notice on an ATM Tobyhanna operated at 880 Schechter Drive, Wilkes Barre, PA in violation of the EFTA, 15 U.S.C. § 1693b(d)(3)(B)(i). Riviello brings this action under Rule 23(b)(3) on behalf of a class of persons defined as:

[A]ll persons who: 1) were charged a "Terminal Fee" at the above described ATM operated by Defendant where, 2) no clear and conspicuous external fee notice "on or at" the machine stated [sic] that indicated that such fee was to be charged.

At ¶ 40 of his complaint, Riviello alleges the following questions of fact and law common to the class predominate over questions which would affect individual members:

(a.) whether, under 15 U.S.C. 1693(d)(3)(A) and 12 C.F.R. 205.16, defendant was, at all relevant times, an automated teller machine operator that imposed a fee on consumers for providing host electronic fund transfer services to those consumers;

(b.) whether defendant complied with the notice requirements of 15 U.S.C. 1693b(d)(3)(B) and 12 C.F.R. 205.16; and

(c.) whether plaintiff and members of the class are entitled to statutory damages, costs and/or attorneys' fees for defendant's acts and conduct.

After Riviello filed his complaint, Tobyhanna moved to strike the class claims and for partial dismissal. The motion has been fully briefed and is ripe for review.

LEGAL STANDARDS

I. Motion to Strike

Fed. R. Civ. P. 12(f) provides: "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."

II. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint ...


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