2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-10-2011

Jay Lin v. Chase Card Services

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1612

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Recommended Citation

"Jay Lin v. Chase Card Services" (2011). 2011 Decisions. Paper 1276.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/1276
NOT PRECEDENTIAL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 ARE 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 Judge
2

Plaintiff-Appellant Jay J. Lin (“Lin”) filed a complaint in the Superior Court of 

New Jersey against Defendants-Appellees Chase Bank USA, N.A., Chase 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, breaches of certain loan agreements, violations of New Jersey‟s various consumer 

protection laws, and criminal harassment. The Defendants removed the action to the 

United States District Court for the District 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 judgment. The District Court 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 

harassment. 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 rejection of Lin‟s arguments. 

Lin and Chase entered into 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% to 5%. Lin, via multiple correspondence
3

with Chase, objected to the increase and refused to remit more than the 2% initially

agreed. In late September 2009, Kassl 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 collection calls.

1

 Lin responded by sending Kassl a letter 

rejecting Chase‟s claims and asking Kassl to discontinue all collection calls. That did not 

stop another unidentified caller from calling Lin at his home requesting payment on his 

outstanding balance. Although Lin demanded that the caller cease all future calls, they 

continued. Lin alleges that these calls on behalf of Chase were intentional and 

maliciously harassing, and as a result he suffered damages.

On October 13, 2009, Lin filed a complaint in the New Jersey Superior Court 

against Defendants, who removed the action to the District Court pursuant to 28 U.S.C. 

§ 1441. Pursuant 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 California. Defendants allege that most 

of Lin‟s causes of action were subject to be transferred to the MDL Proceeding.2 On 

 

1

Lin‟s complaint identified the callers as the Does. 

2

Specifically, Defendants argued that all causes of action presented in Lin‟s complaint - 

involving (1) breach of the 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 Transfer 
4

December 30, 2009, the District Court granted Defendants‟ motion for an extension of 

their time to answer, move, or otherwise respond to the complaint pending transfer to the 

MDL Proceeding. 

Lin also alleged that neither of the Does had answered his complaint, and so he 

filed a motion to require their answer and a motion for judgment on the pleadings against 

them for harassment in violation 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 Does with a summons and a copy of the complaint within 120 days after the 

complaint was filed. All Defendants moved two days later to dismiss Lin‟s complaint 

pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The District Court 

granted 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, 

our 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 Defendants‟ application for an 

extension of time for abuse of discretion. Planned Parenthood of Central New 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 notice of removal within the 

applicable deadline; that they did not comply with 28 U.S.C. § 1446(d)‟s requirement that 

Defendants 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 this 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 preserved 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 Cir. 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.” Fed. 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.” Fed. R.

Civ. 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 conclusions, 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 speculative level.” Id. (internal citations and 

footnote omitted). 

The District Court noted that Lin‟s complaint did not articulate any cause of action 

under which he sought recovery and thus did not satisfy the requirements of Fed. R. Civ. 

P. 8(a)(2). (Dist. Ct. 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 plausible 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 

action for damages.” Id. Moreover, the Court 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] Supreme 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. 

We affirm.