United States District Court, D. Delaware
Michael Schiavone, Northfield, New Jersey. Pro Se Plaintiff.
Lee Moultrie and Steven T. Margolin, Greenberg Traurig, LLP,
Wilmington, Delaware; Tonya L. Urps, McQuire Woods LLP,
Charlotte, North Carolina. Counsel for Defendants.
NOREIKA, U.S. DISTRICT JUDGE.
Michael Schiavone (“Plaintiff”) appears pro
se. He commenced this action on August 20, 2018 alleging
violations of several federal statutes. The Court has
jurisdiction pursuant to 28 U.S.C. § 1331. Before the
Court is Defendants' motion to dismiss and
Plaintiff's opposition. (D. I. 7, 8, 12, 14, 15).
Briefing is complete.
father was issued a credit card in 2007 by Defendants Bank of
America (“Bank of America”) as a franchise and
subdivision of Bank of America, N.A. (“Bank of America,
N.A.”) (together, “Defendants”). (D.I. 1
¶¶ 2, 7). At the time his father was 87.
(Id.). Plaintiff alleges that it was impossible for
his father to understand the terms of the credit card
contract/agreement. (Id.). He alleges that the terms
increased the interest level and merchant fees more than the
bank disclosed to consumers and the interest and fees were
added to consumers' accounts. Plaintiff also alleges that
loan/credit card is predatory because his father was induced
to take the credit under the pretense of low interest which
was later changed and higher than disclosed. Plaintiff
alleges that on or about April 1, 2018, he and his father
were unable to make payments and his father, who is now in
his 90's, does not have the funds to pay back the debt.
(Id. ¶ 8). Plaintiff alleges that at no time
did Defendants disclose changes of terms, interest, fees, and
other liabilities. (Id. ¶ 14). He alleges that
at no time did Defendants inform Plaintiff that the loan was
made by a franchise entity/bank for a European Corporation
with no legal business address and that “Master
Card” gave the franchise to Bank of America.
(Id. ¶ 15).
alleges violation of the False Claims Act, 31 U.S.C. §
3729; the Truth in Lending Act, 15 U.S.C. § 1601, the
Consumer Credit Protection Act of 1988, the Fair Credit and
Charge Card Disclosure Act of 1988, and the Credit Card
Accountability Responsibility and Disclosure Act.
(Id. ¶ 1). Plaintiff also alleges Defendants
violated the usury laws of the State of Delaware.
(Id. ¶¶ 10, 13). He seeks $500, 000 in
compensatory damages. (Id. at 158).
move to dismiss pursuant to Fed.R.Civ.P. 8(a), 9(b), and
12(b) on the grounds that: (1) Plaintiff does not have
standing to assert any claim because he is not an obligor on
the account about which he complains; (2) Plaintiff, who
proceeds pro se, cannot represent his father; (3)
the Complaint fails to meet the notice pleading standard of
Rule 8; (4) the complaint fails to meet the heightened
pleading standard of Rule 9; (5) the Delaware usury clam is
preempted by federal law; and (6) the Truth in Lending Act
and fraud claims are barred by the statute of limitations.
8(a)(2) requires that a complaint contain a short and plain
statement of the claim showing that the pleader is entitled
to relief, “in order to give the defendant fair notice
of what the claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)).
Fed. R. Civ. R. 9
claims are subject to the heightened pleading requirements of
Federal Rule of Civil Procedure 9(b). United States ex
rel. Whatley v. Eastwick Coll., 657 Fed.Appx. 89, 93 (3d
Cir. 2016). Under Rule 9(b), plaintiffs must “state
with particularity the circumstances constituting fraud or
mistake.” “Rule 9(b) falls short of requiring
every material detail of the fraud such as date, location,
and time” but requires “alternative means of
injecting precision and some measure of substantiation into
their allegations of fraud.” In re Rockefeller
Center Properties, Inc. Securities Litigation, 311 F.3d
198, 216 (3d Cir. 2002) (internal quotations omitted) (citing
In re Nice Systems, Ltd. Securities Litigation, 135
F.Supp.2d 551, 577 (D.N.J. 2001)).