The opinion of the court was delivered by: O'neill, J.
Plaintiff filed his complaint on January 31, 2012 seeking damages, attorney's fees and costs and other relief pursuant to the Electronic Funds Transfer Act, 15 U.S.C. § 1693 et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. Defendant has filed a motion to dismiss. *fn1 Also before me are plaintiff's response to the motion and defendant's reply. *fn2 For the reasons that follow, I will dismiss plaintiff's EFTA claim without leave to amend and plaintiff's ADA claim with leave to amend.
Plaintiff used defendant's ATM on January 31, 2011 and was charged
a two dollar fee. Compl. ¶¶ 16-17. He brings two claims based on this
transaction. First, plaintiff alleges that the fee was assessed in
violation of the EFTA which requires that an ATM operator provide
notice to consumers before imposing a usage fee. Id .
¶¶ 41-43. Second, plaintiff, who asserts that he is
"sight-impaired but not legally blind," Id. ¶ 53, alleges that the
notice provided failed to
adequately inform him of the usage fee and he was denied equal
enjoyment of the services of defendant's ATM in violation of the ADA,
as he was unable to make the same informed decision as a sighted
person. Id . ¶¶ 56-57.
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Twombly, 550 U.S. at 556. The Court of Appeals has made clear that after Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 129 S. Ct. at 1949. The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-11, quoting Iqbal, 129 S. Ct. at 1950. The Court explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id., citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Iqbal, 129 S. Ct. at 1949.
Plaintiff's EFTA claim cannot withstand defendant's motion to dismiss because defendant provided plaintiff with all the notice of the two-dollar fee that was required under the EFTA.
The EFTA provides that "any automated teller machine operator who imposes a fee on any consumer for providing host transfer services to such consumer [is required] to provide notice in accordance with subparagraph (B) . . . ." 15 U.S.C. § 1693b(d)(3)(A). Subparagraph B requires that (I) the notice "shall be posted in a prominent and conspicuous location on or at the automated teller machine at which the electronic transfer is initiated by the consumer" and (ii) the notice must "appear on the screen of the automated teller machine, or on a paper notice issued from the machine . . . ." 15 U.S.C. § 1693b(d)(3)(B). Further, subparagraph C provides that an ATM may not impose fees unless "(I) the consumer receives such notice in accordance with subparagraph (B); and (ii) the consumer elects to continue in the manner necessary to effect the transaction after receiving such notice." 15 U.S.C. § 1693b(d)(3)(C). Section 205.16(b) of the EFTA's implementing regulations requires that ATMs that impose a fee provide notice and disclose the amount of the fee. 12 C.F.R. § 205.16(b). Subsection (c)(1) explains that the on-machine notice must be posted "in a prominent and conspicuous location on or at the automated teller machine . . . ." 12 C.F.R. § 205.16(c)(1).
Thus, the EFTA and its implementing regulations require that an ATM which imposes a fee must provide both on-screen and on-machine notice. 15 U.S.C. § 1693b(d)(3); 12 C.F.R. § 205.16. Plaintiff alleges that the defendant's ATM violated the EFTA because it did not provide the required fee notice. Compl. ¶¶ 41-43. Plaintiff's complaint, however, does not allege that he was not provided the required on-screen notice. He appears to concede that such notice was given when he refers to "[t]he use of computer screen text as the sole notice of a usage fee . . . ." Compl. ¶ 52. In addition, plaintiff does not assert that there was no on-machine notice. In fact, the exhibits attached to his complaint show that some form of notice was located on the machine. Compl. Ex. to Compl. at ECF p. 22. The on-machine notice was located on the front of the ATM and reads as follows:
Please be advised that you may be assessed the following fees:
* $0.50 fee, per inquiry transaction, if you are a PFCU member.
* $1.50 surcharge fee for cash withdrawals, if you are a non-member of PFCU. This fee is in addition to the amount of your withdrawal and any fee that may ...