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Pfg Precious Metals v. Joy Perkins

September 27, 2011

PFG PRECIOUS METALS, PLAINTIFF,
v.
JOY PERKINS, EDWARD O'CONNELL,
TINA UMOH, AND JAMES STREETER, DEFENDANTS.
PFG PRECIOUS METALS, PLAINTIFF,
v.
SUNTRUST BANK AND CAPITAL ONE, N.A., DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman, Chief Judge:

MEMORANDUM OPINION AND ORDER

This case, though initially filed by plaintiff PFG Precious Metals ("PFG") in the Circuit Court of Cook County against defendants Capital One, N.A. ("Capital One") and SunTrust Bank ("SunTrust") (together "Bank Defendants"), was removed to this court on December 3, 2010. In this case, PFG is seeking recovery from each Bank Defendant for conversion, unjust enrichment, and "money had and received." (No. 10 C 7709, Dkt. No. 1-1 ("Bank Compl.").) PFG alleges that each Bank Defendant unlawfully, unjustly, and without authorization debited $95,000 from PFG's bank account. The Bank Defendants have each moved to dismiss PFG's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons set forth below, "Capital One, N.A.'s Motion to Dismiss" (No. 10 C 7709, Dkt. No. 29) and "Defendant SunTrust Bank's Motion to Dismiss Plaintiff's Complaint for Failure to State a Claim" (No. 10 C 6462, Dkt. No. 41) are denied.

BACKGROUND

PFG is an Illinois corporation that engages in the business of selling certain precious metals. (Bank Compl. ¶ 5.) On June 22, 2010, non-party Joy Perkins ("Perkins") placed an order with PFG for $95,000.00 worth of gold coins. (Id. ¶ 7.) Perkins paid for the gold coins through an automated clearing house ("ACH") transaction with SunTrust. (Id. ¶ 8.) On June 22, 2010, PFG's bank account received $95,000 from Perkins's SunTrust account. (Id.) On June 28, 2010, PFG shipped the gold coins to the address that Perkins had designated for delivery. (Id. ¶¶ 9-10.) The gold coins were delivered to Perkins on June 29, 2010. (Id. ¶¶ 10-11.) That same day, PFG was notified that SunTrust had reversed the Perkins ACH. (Id. ¶ 12.) PFG's bank account was debited $95,000 and that amount was re-credited to SunTrust. (Id.) PFG has not received the gold coins it shipped to Perkins or any other consideration in exchange for the reversal of the Perkins ACH. (Id. ¶ 13.)

PFG's allegations against Capital One are nearly identical to its allegations against SunTrust. On June 17, 2010, non-party Edward O'Connell ("O'Connell") placed an order with PFG for $95,000 worth of gold coins. (Id. ¶ 16.) O'Connell paid for the gold coins through an ACH with Capital One. (Id. ¶ 17.) On June 21, 2010, PFG's bank account received $95,000 from O'Connell's Capital One account. (Id.) On June 23, 2010, PFG shipped the going coins to the address that O'Connell had designated for delivery. (Id. ¶¶ 18-19.) The gold coins were delivered to O'Connell on June 24, 2010. (Id. ¶¶ 19-20.) On July 12, 2010, PFG was notified that Capital One had reversed the O'Connell ACH. (Id. ¶ 21.) PFG's bank account was debited $95,000 and that amount was re-credited to Capital One. (Id.) PFG has not received the gold coins it shipped to O'Connell or any other consideration in exchange for the reversal of the O'Connell ACH. (Id. ¶ 22.)

PROCEDURAL HISTORY

PFG initially filed two related complaints in state court. The first complaint was assigned case number 2010 L 01096 in the Circuit Court of Cook County, and named individuals Perkins, O'Connell, Tina Umoh ("Umoh"), and James Streeter ("Streeter") as defendants. (See No. 10 C 6462 ("Individual Case").) The Individual Case was removed to federal court on October 28, 2010, where it was assigned to Chief Judge James F. Holderman's calendar as federal case number 10 C 6462. The second state court case was assigned case number 2010 L 012358 in the Circuit Court of Cook County, and named SunTrust and Capital One as the defendants. (See No. 10 C 7709 ("Bank Case").) The Bank Case was removed to federal court on December 3, 2010, and assigned federal case number 10 C 7709. The Bank Case against defendants SunTrust and Capital One was then reassigned to Chief Judge Holderman's docket on December 20, 2010, because the case against the Bank Defendants was related to the case against the individual defendants.*fn1 (See No. 10 C 7709, Dkt. No. 12.) On April 27, 2011, PFG voluntarily dismissed its claims against individual defendants Perkins and O'Connell.*fn2 (See No. 10 C 6462, Dkt. No. 31.) The Bank Defendants, SunTrust and Capital One, filed the pending motions to dismiss.

LEGAL STANDARD

To avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), a plaintiff's claim must only "raise a right to relief above the speculative level" such that the claim is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). If the allegations of a complaint "fail[ ] to state a claim upon which relief can be granted," the complaint will be dismissed. Fed. R. Civ. P. 12(b)(6). When addressing a motion to dismiss, the court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Fednav Int'l Ltd. v. Continental Ins. Co., 624 F.3d 834, 837 (7th Cir. 2010).

ANALYSIS

1. PFG's Allegations in the Individual Case's Complaint At the outset, the court must consider the affect of certain allegations included in PFG's complaint against the individual defendants, insofar as the Bank Defendants argue that allegations in PFG's Individual Case's complaint are admissions that the court must accept as true. Consequently, the court will evaluate those allegations.

PFG alleged in the Individual Case's complaint that, "on June 25, 2010 . . . Defendant PERKINS caused SunTrust Bank to reverse the ACH by signing and delivering to SunTrust Bank a 'Written Statement Under Penalty of Perjury' . . . assert[ing] under penalty of perjury that she did not authorize PFG to debit her account through the ACH." (Indiv. Compl. ¶¶ 16-17.) PFG also alleged that, "on July 12, 2010, Defendant O'CONNELL caused Capital One, N.A. to reverse the ACH by signing and delivering to Capital One, N.A. an 'Affidavit of Unauthorized/Improper ACH Debit/Credit Activity' . . . assert[ing] under penalty of perjury that he did not authorize PFG to debit his account through the ACH." (Id. ¶¶ 30-31.) PFG's Individual Case's complaint alleged that both statements were false, and that Perkins and O'Connell "in fact had authorized PFG to send an ACH debit" to their respective bank accounts. (Id. ¶¶ 18, 32.)

The court can take judicial notice of the fact that these allegations were made without affecting the pending motions to dismiss. See 520 South Michigan Ave. Asso. v. Shannon, 549 F.3d 1119, 1138 n.14 (7th Cir. 2008) ("this court may consider judicially noticed documents without converting a motion to dismiss into a motion for summary judgment") (internal quotations and citation omitted). On the other hand, the parties dispute whether the court can, or should, accept PFG's allegations in the Individual Case's complaint as binding judicial admissions for purposes of analyzing the Bank Defendants' pending motions to dismiss.

"It is a 'well-settled rule that a party is bound by what it states in its pleadings.'" Help at Home Inc. v. Med. Capital, LLC, 260 F.3d 748, 753 (7th Cir. 2001) (quoting Soo Line R.R. Co. v. St. Louis Sw. Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997)). However, "a judicial admission is binding only in the litigation in which it is made." Id. at 753 n.2 (citing Higgins v. Mississippi, 217 F.3d 951, 954 (7th Cir. 2000)). "In other litigation, it ...


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