Giannone v. Bank of America, N.A.

812 F. Supp. 2d 216, 2011 U.S. Dist. LEXIS 107391, 2011 WL 4425465
CourtDistrict Court, E.D. New York
DecidedSeptember 22, 2011
DocketNo. 10-CV-2720 (JFB)(ETB)
StatusPublished
Cited by6 cases

This text of 812 F. Supp. 2d 216 (Giannone v. Bank of America, N.A.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giannone v. Bank of America, N.A., 812 F. Supp. 2d 216, 2011 U.S. Dist. LEXIS 107391, 2011 WL 4425465 (E.D.N.Y. 2011).

Opinion

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Pro se plaintiff Jonathan Giannone (hereinafter “plaintiff’ or “Giannone”) brought this action against defendants Bank of America, N.A., (hereinafter “BofA”) and United States Secret Service (hereinafter “USSS”) (collectively “defendants”) alleging that they violated the Right to Financial Privacy Act (“RFPA”), 12 U.S.C. §§ 3402, 3403(a).

The defendants have separately moved to dismiss plaintiffs complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiffs claims are time-barred and, in the alternative, that plaintiff failed to state a claim for which relief may be granted. For the reasons discussed herein, the Court dismisses plaintiffs complaint in its entirety as time-barred. In the alternative, the Court concludes that the BofA was permitted to release the information it allegedly disclosed to the USSS, which did not have to follow standard procedures for obtaining it. Specifically, the USSS was exempt from following normally-applicable procedures because the information it allegedly obtained was exempt under Section 3403(c) as either “identifying information” relevant to a criminal investigation or “information concerning the nature” of suspected criminal activity. Thus, even accepting the allegations in the complaint as true and drawing all reasonable inferences in plaintiffs favor, the RFPA claims against BofA and the USSS fail as a matter of law and cannot survive a motion to dismiss.

I. Background

A. The Complaint

The following facts are taken from the complaint and are not findings of fact by the Court. They are assumed to be true for the purpose of deciding this motion and [218]*218are construed in a light most favorable to the plaintiff, the non-moving party.

Central to this dispute is an exchange of information between BofA and the USSS regarding plaintiffs accounts with BofA. In April 2005, plaintiff opened an account ending in 2565 (hereinafter “business account”) in the name of a Massachusetts corporation called A & W Auto Clinic which listed a Massachusetts address on the account. (Compl. ¶¶ 12-13.) Approximately a year prior, plaintiff opened a personal checking account ending in 0645 (hereinafter “personal account”) with Fleet Bank, which was later acquired by BofA. (Id. ¶¶ 10-11.) The accounts were linked. (Id. ¶ 41.)

The exchange of information central to the complaint took place as part of a criminal investigation. On May 19, 2005, the USSS initiated “Operation Anglerphish” to investigate theft of personal financial and other identifying information, among other things. (Id. ¶ 14.) The USSS utilized a confidential informant by the name of Brett Shannon Johnson (“Johnson”) to contact online someone with a screen name “Pit Boss 2600” (hereinafter “Pit Boss”) in an attempt to gather information about the various schemes being investigated. (Id. ¶ 15.) The exchange eventually led to Johnson purchasing stolen credit card numbers from Pit Boss. (Id. ¶¶ 16-21.) On June 7, 2005, Johnson deposited $600 in the business account, the number for which was provided by Pit Boss. (Id. ¶¶ 19-20.)

Once the USSS obtained the business account number from Johnson as the one into which he deposited money for Pit Boss, the USSS contacted BofA via telephone to obtain information about it. (Id. ¶¶ 40^41.) This telephone exchange took place on or about June 7, 2005 (hereinafter “June 7 telephone call”). (Id. ¶ 41.) At that time, the USSS did not have a subpoena for any bank records related to Johnson’s exchange with Pit Boss. (Id. ¶ 40.)

BofA was served with a subpoena on July 1, 2005 for information regarding the business and personal accounts. (Id. ¶ 22.) In July 2006, agents working for the USSS interviewed Hunter Moore, a former confidential informant, who identified plaintiff as using the online identity of Pit Boss. (Id. ¶ 26.) Pursuant to a grand jury subpoena, the USSS received the opening documentation and signature cards for the business account. (Id. ¶ 27.) The BofA employee who opened the business account identified plaintiff in a line-up as the individual who opened that account. (Id. ¶ 29.)

On August 14, 2006, Special Agent Bobby Joe Kirby (“Kirby”) filed an affidavit accompanying a criminal complaint against plaintiff and a warrant for his arrest. (Id. ¶ 30.) On March 8, 2007, plaintiff was convicted after a jury trial of wire fraud in violation of 18 U.S.C. § 1343. (Id. ¶¶ 30, 38.)

B. Procedural History

Plaintiff filed his complaint on June 14, 2010. On October 7, 2010, the USSS requested that a pre-motion conference be held to address its motion to dismiss the complaint. In an Order dated October 13, 2010, the Court waived the pre-motion conference requirement and set a briefing schedule for defendant’s motion. The USSS filed its motion to dismiss on November 22, 2010. Plaintiff filed his opposition on January 3, 2011. The USSS filed its reply on January 14, 2011.

On November 23, 2010, BofA filed a letter requesting that a pre-motion conference be held to address its motion to dismiss the complaint. In an Order dated November 29, 2010, this Court waived the pre-motion conference requirement and [219]*219set a briefing schedule for defendant’s motion. BofA filed the motion to dismiss on December 29, 2010. Plaintiff filed his opposition on March 18, 2011. BofA filed its reply on April 22, 2011.

The Court has fully considered the submissions and arguments of the parties.

II. Standard of Review

When a Court reviews a motion to dismiss for failure to state a claim for which relief can be granted, it must accept the factual' allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006). “In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient ‘to raise a right to relief above the speculative level.’ ” Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir.2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard does not require “heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

The Supreme Court recently clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

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Bluebook (online)
812 F. Supp. 2d 216, 2011 U.S. Dist. LEXIS 107391, 2011 WL 4425465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giannone-v-bank-of-america-na-nyed-2011.