1 

IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

 Prinzo & Associates, LLC, on behalf of itself and

 all others similarly situated, 

Plaintiff, 

v. 

BMO Harris Bank N.A.; BMO Financial Corp., a 

Delaware corporation; and Does 1-100, inclusive,

Defendants. 

 Case No. 1:20-cv-3256 

Hon. Gary S. Feinerman 

MOTION TO DISMISS OF DEFENDANTS 

BMO HARRIS BANK N.A. AND BMO FINANCIAL CORP. 

 

Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, 

Defendants BMO Harris Bank N.A. and BMO Financial Corp. (“Defendants”) move to 

dismiss this action. As grounds for this motion, as more fully outlined in Defendants’ 

Memorandum in Support of Their Motion to Dismiss, Defendants state as follows: 

1. Defendants respectfully request that this Court dismiss Plaintiff’s facially defective 

Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil 

Procedure because: (i) Plaintiff lacks Article III standing-- Plaintiff does not allege an 

injury in fact, much less that its claims are ripe for adjudication; and (ii) Plaintiff fails to 

set forth sufficient factual allegations to state a claim for relief for any of its claims. 

2. Plaintiff, Prinzo & Associates (“Plaintiff”), filed this class action lawsuit seeking its fees 

in connection with assisting an unnamed small business in applying for a Payroll 

Case: 1:20-cv-03256 Document #: 26 Filed: 08/14/20 Page 1 of 5 PageID #:103
2 

Protection Program (“PPP”) loan through BMO Harris. 

3. Plaintiff, however, is not entitled to these fees for two primary reasons: 

(i) Plaintiff does not (and cannot) allege that it complied with the Small Business 

Administration’s (“SBA”) requirements to be eligible for its purported fees; 

and 

(ii) Despite Plaintiff’s allegation that it is required, at a minimum, to submit a 

“request for fee payment to the lender with the agent’s fee based upon [] the 

work performed for the client,” (Compl. ¶34) Plaintiff does not (and cannot) 

allege that it made such a request. 

4. As a result of these failings, this Court should dismiss the action for lack of subject matter 

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) because: (i) Plaintiff has not suffered an 

injury in fact; and/or (ii) Plaintiff’s claims, to the extent it has any, are not yet ripe for 

adjudication. 

5. In the alternative, the Plaintiff fails to state a claim for relief under Fed. R. Civ. P. 12(b)(6), 

and should be dismissed with prejudice, for the following reasons: 

(i) Plaintiff’s declaratory judgment and state law claims fail because Plaintiff 

seeks only to enforce provisions of the Coronavirus Aid, Relief, and Economic 

Security Act (the “CARES Act”) and/or SBA regulations—for which there is 

no private right of action. The United States Supreme Court has rejected this 

tactic as an impermissible attempt to create a private right of action where 

none exists. When a plaintiff’s suit is “in essence a suit to enforce” a federal 

statute lacking a private right of action, it is “incompatible with the statutory 

Case: 1:20-cv-03256 Document #: 26 Filed: 08/14/20 Page 2 of 5 PageID #:104
3 

regime” to allow common-law claims predicated on alleged violations of that 

federal standard. Astra USA, Inc. v. Santa Clara County, 563 U.S. 110, 118 (2011). 

(ii) Plaintiff’s state law claims also fail in substance because Plaintiff either failed 

to plead the necessary elements to support its claims and/or lacks standing to 

assert the claims in the first place. 

(iii) Plaintiff‘s breach of contract, third party beneficiary claim (Count II) fails 

because Plaintiff was not a direct beneficiary of the agreement between BMO 

Harris and the SBA. 

(iv) Plaintiff’s Illinois Consumer Fraud And Deceptive Business Practices Act 

(ICFA) claim (Count III) fails because Plaintiff: (a) lacks standing under ICFA 

as a non-resident business; (b) does not assert any deceptive acts, much less 

with the required specificity; (c) does not allege any “unfair” conduct—there is 

nothing improper with requiring compliance with SBA regulations. 

(v) Plaintiff’s unjust enrichment claim (Count IV) is dead on arrival because: (i) 

the other claims it is dependent on failed; and (ii) Plaintiff cannot allege that 

BMO Harris unjustly retained a benefit that Plaintiff is not entitled to receive. 

(vi) Plaintiff’s conversion claim (Count V) also fails because it does not allege a 

proper demand for payment, much less that Plaintiff was even entitled to the 

payment. 

(vii) Finally, Plaintiff’s claims against BMO Financial Corp. should be dismissed 

because Plaintiff fails to assert any facts directed against BMO Financial Corp. 

Despite Plaintiff’s general allegation that “Defendants” made PPP loans but 

Case: 1:20-cv-03256 Document #: 26 Filed: 08/14/20 Page 3 of 5 PageID #:105
4 

refused to pay agent fees to Plaintiff, the Complaint does not allege that BMO 

Financial Corp. made any PPP loans, much less the one to the Plaintiff’s 

alleged client. Nor could Plaintiff, as BMO Financial Corp. did not make or 

fund PPP loans, and does not appear on the SBA’s list of eligible PPP lenders. 

6. In further support of and grounds for this motion, Defendants refer to and rely upon its 

Memorandum in Support, filed concurrently. 

WHEREFORE, defendants BMO Harris Bank N.A. and BMO Financial Corp. 

respectfully move to dismiss Plaintiff’s Complaint: (1) for lack of subject matter jurisdiction 

under Fed. R. Civ. P. 12(b)(1) or, (2) in the alternative, with prejudice under Fed. R. Civ. P. 

12(b)(6) because there is no private right of action for the purported acts or omissions 

alleged, there is no right to such relief under Illinois law, and such defects cannot be cured 

by amendment. Further, Defendants requests such other relief that the Court deems just 

and proper. 

Dated August 14, 2020 

Respectfully submitted, 

/s/Jeffrey E. Jamison 

Jeffrey E. Jamison 

Julie Rodriguez Aldort 

BMO Harris Bank N.A. 

111 West Monroe 

Chicago, IL 60606 

Tel. (312) 461-4694 

Email: jeffrey.jamison@bmo.com 

Email: julie.aldort@bmo.com

Case: 1:20-cv-03256 Document #: 26 Filed: 08/14/20 Page 4 of 5 PageID #:106
CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that the aforementioned document was 

filed through the Court’s CM/ECF system on August 14, 2020. Parties of record may obtain a 

copy through the Court’s CM/ECF system. The undersigned certifies that no party of record 

requires service of documents through any means other than the CM/ECF system. 

/s/ Jeffrey E. Jamison 

Case: 1:20-cv-03256 Document #: 26 Filed: 08/14/20 Page 5 of 5 PageID #:107