2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

5-10-2011 

# J a y Lin v . C h a se C a r d S e r v ices

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 10-1612

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w . v i l l a no v a . e du/thir dc ir c uit_2011/1276NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ Nos. 10

- 1612 & 10

- 2205

_______________ JAY J. LIN, Appellant

v. CHASE CARD SERVICES; REBECCA KASSL; JOHN DOE AND JANE DOE, TWO INDIVIDUALS WHOSE REAL NAMES A RE UNKNOWN

_______________ On Appeal from the United States District Court For the District of New Jersey (D.C. Civil Action No. 3

- 09

- cv - 05938) District Judge: Honorable Joel A. Pisano

_______________ Submitted Under Third Circuit LAR 34.1(a)

March 8, 2011

_______________ Before: SCIRICA, AMBRO, and VANASKIE, Circuit Judges

(Opinion filed: May 10, 2011 )

_______________ OPINION

_______________ AMBRO, Circuit Judge2

Plaintiff

- Appellant Jay J. Lin (“Lin” ) filed a complaint in the Superior Court of New Jersey against Defendants

- Appellees Chase Bank USA, N.A. , C hase Card Services (“Chase”), Rebecca Kassl, a Financial Service Advisor for Chase (“Kassl”), and John and
Jane Doe ( “Does , ” and together with Chase and Kassl, “Defendants”), alleging , inter alia , breach es of certain loan agreements, violations of New Jersey‟s various consumer protection laws, and criminal harassment. The Defendants removed the action to th e United States District Court for the Distr ict of New Jersey. After motions by both parties , Defendants moved to dismiss Lin‟s complaint pursuant to Federal Rule of Civil Procedure 12 (b)(6) for failure to state a claim. Lin opposed the motion and cross

- moved for summary jud gment. T he D istrict C ou rt granted the motion to dismiss, ruling that Lin‟s complaint did not comply with Federal Rule of Civil Procedure 8, and that New Jersey law does not recognize a civil action for criminal harassmen t. It also denied Lin‟s motion for summary judgment.
Lin filed a timely notice of appeal. We affirm the District Court ‟s decision to grant Defendants an extension of their time to answer, move, or otherwise respond to the complaint. We also affirm its rejecti o n of Lin‟s arguments.
Lin and Chase entered int o an agreement by which Lin would transfer the balance of loans held by other lenders to his Chase account . In return, Chase agreed to consolidate the debt into a fixed, long

- term loan with an annual interest rate of 4.99% and a minimum monthly payment of 2 %

. Lin also paid Chase an advance fee of 3% of the transferred amount. He alleges that in September 2009 Chase unilaterally increased the minimum payment due on his balance from 2% t o 5%

. L in, via multiple correspondence3

with Chase, objected to the in crease and refused to r emit more than the 2% initially agreed. In late September 2009, Ka ssl advised Lin that Chase had the right to increase the minimum monthly payment on his balance

. A week later , Lin alleges that Chase began making harassing collecti on calls

. 1 Lin responded by sen ding Kassl a letter rejecting Chase‟s claims and asking Kassl to discontinue all collection calls. That did not stop another unidentified caller from call ing Lin at his home requesting payment on his outstanding balance. A lthough Lin demanded that the caller cease all future calls, the y continued. Lin alleges that these calls on behalf of C hase were intentional and maliciously harassing , and as a result he suffered damages. On October 13, 2009, Lin filed a c omplaint in the New Jersey Superior Court against Defendants, who removed the action to the District Court p ursuant to 28 U.S.C. § 1441

. P ursuant to Local Civil Rule 6.1(b) of the United States District Court for the District of New Jersey, they sought an extension of their time to answer, move, or otherwise respond to the complaint. Ten days later, they also moved to extend their time to respond pending transfer of the complaint to a Multidistrict Litigation Proceeding (“MDL Proceeding”) in the Northern District of Ca lifornia. Defendants allege that most of Lin‟s causes of action were subjec t to be transferred to the MDL P roceeding. 2 On

1 Lin‟s complaint identified the callers as the Doe s .
2 Specifically, Defendants argued that all cause s of action presented in Lin‟s complaint

- involving (1) breach of th e implied covenant of good faith and fair dealing , (2) unconscionability , (3) declaratory relief , (4) unjust enrichment/restitution , (5) breach of contract , (6) violation of state consumer protection statutes (including New Jersey Rev. Stat. 56:8

- 1, et seq .) , and (7) violation of the Federal Truth in Lending Act

- were subject to the MDL Proceeding. On June 26, 2009, Chase successfully obtained a Transfer4

December 30, 2009, the District Court granted Defendants‟ motion for an ext ension of their time to answer, move, or otherwise respon d to the complaint pending transfer to the MDL Proceeding. Lin also alleged that neither of the Does had answered his compl aint, and so he
filed a motion to require their answer and a motion for judgment on the pleadings against them for harassment in v iolation of N.J.S.A. 2C: 33

- 4. On February 3, 2010, the District Court denied Lin‟s motion for judgment on the pleadings. It reasoned that Lin had not served the Doe s with a summons and a copy of the complaint within 120 days after the complaint was file d. All Defendants moved t w o days later to dismiss Lin‟s complaint pursuant to F ed. R. Civ. P. 12 (b)(6) for failure to state a claim. T he District Court grante d their motion , and Lin timely appealed. The District Court had subject matter jurisdiction under 28 U.S.C. § 1332. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. On motions to dismiss,

o ur standard of review is plenary , Phillips v. County of Allegheny , 515 F.3d 224, 230 (3d Cir. 2008) , 3 while we review the District Court‟s grant of Defendant s ‟ application for an extension of time for abuse of discretion. Planned Parenthood of Central Ne w Jersey v. Att’y Gen. of the State of New Jersey , 297 F.3d 253, 259 (3d Cir. 2004)

. Order , entered by the United State Judicial Panel on Multidistrict Litigation, requiring a transfer to and coordination of all similar claims in the Northern District of California. (MDL Case No. M:09

- cv - 02032

- MMC.)

3 “When considering an appeal from a dismissal of a complaint pursuant to Rule 12(b)(6), we accept as true all well

- pled factual allegations. ” Santiago v. GMAC Mortg. Group, Inc. , 417 F.3d 384, 386 (3d Cir. 2005) (citing Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997)).5

Lin argues that the Defendants did not file their no tice of removal within the applicable deadline ; that they did not comply with 28 U.S.C. § 1446(d)‟s requirement that
D efendant s promptly file a copy of their notice of removal with the state court clerk ; and that they tried to mislead the District Court in their motion to extend their time to respond by purposely fabricating a claim that th is newer action should be transferred to the MDL Proceeding

. This is the first time in this litigation that Lin has raised these issues

. Thus they are not preserve d for appeal. “We have frequently noted „the well

- established rule that absent compelling circumstances an appellate court will not consider issues that are raised for the first time on appeal.” Shell Petroleum, Inc. v. United States , 182 F.3d 212, 219 (3d Ci r. 1999) (citing Patterson v. Cuyler , 729 F.2d 925, 929 (3d Cir. 1984)). The requisite “compelling arguments” are not presented here, and so they are waived

. 4
Lin also alleges that the District Court erroneously granted Defendants‟ motion to
dismiss. A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” F ed. R. Civ. P. 8(a)(2). A court may grant a motion to dismiss if the complaint fails to “ state a claim upon which relief can be granted. ” F ed. R. C iv

. P. 12(b)(6). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff‟s obligation to provide the „ grounds ‟ of his „ entitle[ment] to relief ‟ requires more than labels and conclus ions, 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) (internal citations omitted). The “ [f]actual allegations must be

4 Even had these issues been preserved, we would not have found them persuasive

.6

enough to raise a right to relief above the speculat ive level.” Id. (internal citations and footnote omitted). The District Court noted that Lin‟s complaint did not articulate any cause of action under whi ch he s ought recovery and thus did not satisfy th e requirements of F ed. R. Civ.
P. 8(a)(2). (Dist. C t. Op. at 4; Appellant‟s App. at A

- 6). We agree with the Court in its conclusion that “Lin‟s complaint [ , which] consists simply of vague factual allegations against the Chase Defendants[ , is ] conclusory in the extreme and do [es] not state a facially plau sible right to relief.” Id. We also agree that a plaintiff does not have a civil cause of action against a defendant for an alleged violation of the New Jersey Penal Code Section 2C:33

- 4. See Rooney v. Carlomagno , 2010 WL 199397 (N.J. Super. Ct. App. Div. 2010). The Rooney court held that no private right of action exists under N.J.S.A. 2C:33

- 4 and dismissed the plaintiff‟s case. Id. at *2

. It stated that “[w]e have specifically declined the opportunity
to consider whether an act of harassment under N.J.S.A. 2C:33

- 4 creates a civil cause of acti on for damages.” Id. Moreover, the C ourt believed that , as an intermediate appellate court, it was inappropriate to recognize a new cause of action because it “should normally defer to the [New Jersey] Supr eme Court or to the [New Jersey] Legislature with respect to the creation of a new cause of action.” Id. (quoting Tynan v. Curzi , 753 A.2d 187, 192 (App. Div. 2000)). Neither the New Jersey Supreme Court nor the State‟s Legislature has created a private cause of action under N.J.S.A. 2C:33

- 4, and we will not do so here.
W e affirm.