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Jack E. Feinberg v. American Express Company

October 7, 2011


The opinion of the court was delivered by: DuBOIS, J.



Plaintiff commenced this action on August 3, 2011, in the Court of Common Pleas of Philadelphia County, alleging negligence on the part of defendant American Express Company. Defendant removed the case to this Court on August 29, 2011. In his Complaint, plaintiff claims that defendant "unlawfully and without proper or any authorization from plaintiff electronically transferred funds from plaintiff's bank account to satisfy the debt of someone other than [p]laintiff." (Compl. ¶ 6.)

Presently before the Court is defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the Court denies defendant's Motion to Dismiss without prejudice to defendant's right to raise the issues presented after completion of discovery by motion for summary judgment and/or at trial.


Plaintiff had a bank account titled "Feinberg & Silva, Attorney Account" at Republic Bank in Philadelphia, Pennsylvania. (Id. ¶¶ 3, 5.) From March 2008 to August 2010, defendant withdrew funds from plaintiff's account through a series of electronic funds transfers totaling $174,261.85. (Id. ¶¶ 6, 11, ex. A.) Defendant did this to satisfy a debt owed to it by plaintiff's bookkeeper, who is not a party to this litigation. (Id. ¶¶ 6, 8.) Plaintiff did not authorize or know about these transfers until after the bookkeeper stopped working for plaintiff. (Id. ¶ 8.) It is unclear from the face of the complaint whether anyone authorized the transfers, and if so, who authorized them. (Id. ¶ 9(i).) Plaintiff is not a customer of defendant and had no prior relationship with defendant. (Def.'s Mot. Dismiss 4.)

In Count One of the Complaint, plaintiff alleges negligence on the part of defendant for withdrawing funds from plaintiff's account to satisfy the debt of someone not named on the account, (Compl. ¶ 9(b)), for failing to get plaintiff's permission before withdrawing the funds, (id. ¶ 9(c)), and for failing to notify plaintiff when it withdrew the funds, (id. ¶ 9(e)). Plaintiff seeks punitive damages in Count Two, alleging that "[d]efendant's conduct exhibits reckless indifference to plaintiff's rights."*fn1 (Id. ¶ 15.)

Defendant now moves this Court to dismiss plaintiff's Complaint. Defendant argues that plaintiff was not a customer and had no relationship with defendant during the time in question, and thus defendant did not owe a duty to plaintiff.


Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court "accept[s] all factual allegations as true, [and] construe[s] the complaint in the light most favorable to the plaintiff." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotations omitted).

"To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level . . . .'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff's allegations must show that defendant's liability is more than "a sheer possibility." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

In Twombly, the Supreme Court utilized a "two-pronged approach," which it later formalized in Iqbal. Iqbal, 129 S. Ct. at 1950; Fowler v. UPMC Shadyside, 578 F.3d 203, 210--11 (3d Cir. 2009). Under this approach, a district court first identifies those factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded. Iqbal, 129 S. Ct. at 1950. The court then assesses "the 'nub' of the plaintiff['s] complaint -- the well-pleaded, nonconclusory factual allegation[s] . . . to determine" whether it states a plausible claim for relief. Id.


"'The primary element in any negligence cause of action is that the defendant owes a duty of care to the plaintiff.'" Bilt-Rite Contractors, Inc. v. Architectural Studio, 866 A.2d 270, 280 (Pa. 2005) (quoting Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1168 (Pa. 2000)). "Duty, in any given situation, is predicated upon the relationship existing between the parties at a particular time; if the parties are strangers, the scope of the duty not to place others at risk is limited to those risks which are reasonably foreseeable." Burman v. Golay & Co., Inc., 616 A.2d 657, ...

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