Galper v. JP Morgan Chase Bank N.A., No. 1:2013cv03449 - Document 36 (S.D.N.Y. 2014)

Court Description: OPINION re: 19 FIRST MOTION to Dismiss the Amended Complaint, or, in the alternative, to Strike Certain Allegations, filed by JP Morgan Chase Bank N.A. Given the reasoning above, Defendant's motion to dismiss is granted, and motion to strike is denied as moot. The AC is dismissed with leave granted to replead within 20 days. It is so ordered. (Signed by Judge Robert W. Sweet on 3/14/2014) (ja) (Main Document 36 replaced on 3/18/2014) (ja).
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------x YELENA GALPER, Plaintiff, 13 Civ. 3449 OPINION -againstJPMORGAN CHASE, N.A., Defendant. ----- ---- --- ------------- ---------x = A P PEA RAN C E S: Attorne for Plaintiff CREIZMAN LLC 565 fth Avenue, Fl. 7 New York, NY 10017 By: Eric M. Creizman, Esq. Att for Defendant LEVI LUBARSKY & FEIGENBAUM LLP 1185 Avenue of the Americas, 17th Floor New York, NY 10036 By: Alan H. Scheiner, Esq. Andrea Likwornik Weiss, Esq. =i\ Sweet, D.J. Defendant JPMorgan Chase Bank, N.A. ("Chase U or the "Defendant U) has moved pursuant to Federal Rules of Civil Procedure 9(b} and 12(b} (6) to dismiss the Amended Complaint ("AC U) of Yelena Galper ("Galperu or the" the alternative, to strike certa aintiffU), or, in allegations pursuant to Fed. R. Civ. P. 12(f). Based upon the conclusions set forth below, the motion to dismiss is granted, and the AC is dismissed with leave granted to replead within 20 days. Prior Proceedings Galper filed her complaint on May 22, 2013. Chase moved to dismiss the initial complaint on June 28, 2013. Galper filed her AC on July 9, 2013. The instant motion to dismiss the AC was heard and marked fully submitted on November 6, 2013. Because this is a motion to dismiss under Fed. R. Civ. P. 12(b) (6), the llowing facts, which this Court assumes to be true, are drawn from the AC. See Tellabs Inc. v. 551 U.S. 308, 322, 127 S. Ct. 2499, 168 L. Ed. 2d 179 (2007) § ("[F]aced with a Rule 12(b) (6) motion to di ss a 10(b) action, courts must, as with any motion to dismiss r ilure to plead a claim on which relief can be granted, accept the complaint as true."). all factual allegations ity the The AC alleges three causes of action: i in violation of N.Y. Gen. Bus. Law Section 380 s, aiding and the abetting ident allegat ns conce and conversion. The AC contains ng the activities of three Chase employees from 2008-2011 in connection with a money laundering scheme, members of which have been prosecuted and convicted on charges in t Eastern District of New York. AC ~~ ony 1, 17. The members of the money laundering scheme concealed the proceeds of a Medicare fraud perpetrated by owners and control rs of three health care clinics: Bay Medical Care, SZS Medical Care, and SVS Wellcare Medical (the "Clinics fl ). rd. ~ 16. Members of the money undering scheme provided a service to the owners and controllers of the Clinics by creating phony corporations to which the Clinic owners and controllers could write checks, thus concealing the illicit proceeds of their fraud. rd. money laundering conspirators would then withdraw ca cashier's checks from the ~ 17. The or k accounts they opened for the phony corporations and return the cash to the Clinic owners 2 after taking a fee for themselves. Id. In September 2009, three accounts in the name of phony corporations were opened at Chase that falsely identified Galper as signatory and president of the corporations. Id. ~ 18. These accounts were opened by members of the money laundering scheme with the assistance of a Chase branch manager and business account manager, who allegedly opened the accounts without Galper's permission or knowledge. rd. The members of the money laundering scheme and the Chase employees also used a dormant personal checking account of Galper's to make personal, lavish expenditures for the members of the money laundering scheme. rd. ~~ 18, 19. The branch manager and a teller permitted a member of the money laundering scheme to make large cashier's check withdrawals using Galper's ident y and forged bank records to fals made the withdrawals. Id. conspiracy. rd. ~~ ~ y reflect that Galper 22. The AC further details the 19-26. The money laundering conspirators provided the Chase employees with money and other things of value in exchange for their unlawful se s. rd. ~ 4. Additionally, by ostensibly bringing in business and bank fees through the opening and operation of the fraudulent business accounts, the Chase employees improved their stature and compensation at Chase. rd. 3 Oftentimes the money-laundering accounts opened in Galper's name would become overdrawn, or checks written to those accounts would bounce. Id. ~ 6. When the money laundering conspiracy was discovered, the Government closed the fraudulent accounts. Id. Since Galper was the sole signatory on the accounts, the Government investigated her, and despite her denial of involvement, Galper was indicted. Id. The bounced checks, closed accounts, and government investigation triggered reports to ChexSystems and Early Warning Systems, companies which collect data on account holders and he customers. Id. ~~ institutions identify risky 7-9. As a result of the adverse reports, Galper's checking account at HSBC was closed, as was the account she opened in response to the first account's closing. Id. 2010, Chase also clo ~ 10. In February a bank account of Galper's 12-year old son, for which she was the custodian. Id. In addition, the unlawful activity captured the attention of law enforcement, who interviewed and investigated Galper, resulting in an ultimately unsuccess 1 federal criminal prosecution. Id. ~ 27. After a seven week trial, a jury acquitted Galper of all charges. Id. 4 Galper seeks $10 million in compensatory and punitive damages from Chase. AC ~ r actual damages 11. She claims that ~ include financial and emotional damages, id. 32, including s and costs associated with defending the federal attorneys' criminal prosecution against her, id. ~ 14. The Applicable Standards On a motion to dismiss pursuant to Rule 12 (b) (6), factual allegations in the complaint are accepted as true, all inferences are drawn in favor of the pleader. Mills v. Molecular Co .,12 F.3d 1170,1174 (2d Cir. 1993). all and Polar "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims . . '" Villager 378 (2d Cir. Pond, 1995) Inc. (quoting v. Town of Scheuer v. Darien, Rhodes, 236, 94 S. Ct. 1683, 40 L. Ed. 2 d 90 survive dismiss "a complaint must F. U.S. 416 375, 232, to Rule ( 1974 ) ) . To 56 12 (b) (6), accepted as true, to a motion pursuant contain sufficient factual matter, 'state a claim to relief that is plausible on its face.'" Ashcroft v. 1937, 1949, 173 L. to I . 2d 868 1, 556 U.S. (2009) 5 662, 678, 129 S. (quoting Bell Atl. Co Ct. . v. Twombl 550 U.S. (2007)). Plaintiffs their claims across 550 Twombl 544, U.S. 570, must allege the at 127 S. line 570. Ct. 1955, sufficient from Though facts conceivable the Court factual allegations of a complaint as true, accept as true a legal 129 allegation.'" conclusion S. Ct. at 167 L. to to 2d 929 "nudge [ plausible." must accept the it is "'not bound to couched 1950 Ed. as (quoting a factual Twombl 550 U.S. at 555). Rule "state[d] with particular ATSI Commc'ns, Cir. 2007). spe fy Inc. Shaar statements (2) Fed. Fund, averments R. Civ. Ltd., statements that the were made, and (4) Rombach v. of 493 see F.3d 87,99 a plaintiff must: (3) contends why the or speculat i ve allegat ions, F.3d 164, 170 (2d (2d "(1) were r. General, unsupported by specific facts, are legally insufficient. Id. at 176. The First, Second And Third Causes of Action Are Dismissed 6 also statements (internal quotation marks and citation omitted). conclusory, be state where and when explain 355 fraud 9(b)i P. plaintiff identify the speaker, were fraudulent." 2004) v. y." that To satisfy this requirement, the fraudulent, the requires 9 (b) The first cause of action is based on state law that concerns the furnishing of information to credit rting agencies. Such claims are preempted by the federal Fair Credit Reporting Act ("FCRA"). See 15 U.S.C. § 1681t(b) (1) (F) requirement or prohibition may be impos ("No under the laws of any with respect to any subject matter regulat State under section 1681s 2."); 15 U.S.C. § 1681s-2(a) (1) (A) person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe the information is inaccurate."); Chase Bank Cir. 2011) N.A. 665 F.3d 45, 47-48 (2nd (statutory and common law claims grounded upon bank's lse reporting to credit reporting agencies are preempted); see also Islam v. Option One Mortgage Corp., 432 F. Supp. 2d 181, 187-89, 194 (D. Mass. 2006) (holding that federal FCRA preempts claims under Massachusetts fair credit reporting statute and for common law negligence) . The AC alleges that false reports were made to two purported "consumer reporting agencies," ChexSystems and Early Warning Systems, AC <j{ 28, " lsely associating," id., Galper with, among other things: bounced checks on the Corporate Accounts; the closure of the Corporate Accounts; and unspecified 7 allegations of fraud and reports of the criminal prosecution, . ~~ 7-10, 28, 31, 35, and, as a result of these reports, her son's bank account and two of her own personal bank accounts were closed, id. ~~ 10, 28. aintiff's First and Second Causes of Action, "Identi the in Violation of" N.Y. Gen. Bus. Law "aiding and abetting" the same, AC ~~ § r 380-s and 30, 35, are governed by N.Y. Gen. Bus. Law § 380-1. Section 380-1 only permits cla for olations of § 380-s that "resulted in t provision to a consumer reporting agency of in would otherwise not have been transmitt transmission or rmation that or provided II N.Y. Gen. Bus. Law § 380-1 (2013). The state statute requires allegation of facts that trigger federal preemption: that identity the result in misleading information being furnished to credit reporting agencies, thus causing adverse credit reports. Ga 's Thi Cause of Action, for "Conversion," relies on the same allegations as the ident y theft and aiding and abetting claims, and is therefore also preempted. See AC at 14, ~ 37 (Thi Cause of Action "realleg[ing] each and every prior allegation herein"). 8 --------------_ .... _ - _...._-_.. _---­ Congress enacted "broad and explicit" preemption of the entire "subject matter" governed by specific sections of the federal statute, including § 1681s-2, which governs the furnishing of information to credit reporting agencies. See Dickman v. Verizon Commc'ns, (E.D.N.Y. 2012) Inc., 876 F. Supp. 2d 166, 174-75 (claim under New York's Gen. Bus. Law unfair business practices preempt § 349 for where it concerned furnishing incorrect information to credit agencies); Okocha v. HSBC Bank USA, _N.A., 700 F. Supp. 2d 369, 375, 376 (S.D.N.Y. F.3d 103, 105-06 (2d r. 2009) (holding that common law claims of misappropriation of trade secrets, unfair competition, and unjust enrichment concerning the "prescreening" of consumer credit information were properly dismiss because they were preempted under Sections 1681t(B) (1) (A) and 1681b). Although generally preserving state law so long as it is not "inconsistent" with federal law, 15 U.S.C. § 1681t(a), the FCRA provides an exception to that preservation, i.e., it provides for express preemption, as follows: (b) General exceptions No requirement or prohibition may be imposed under the laws of any State­ 9 (1) with respect to any subject matter regulated under­ (F) section 1681s-2 of this tit , relating to the responsibilit s of persons who furnish information to consumer reporting agencies . 15 u.s.c. § 1681t (b) (1) (F). Section 1681s 2 sets forth a carefully crafted system of obligations and prohibitions to regulate the furnishing of information about consumers to credit reporting agencies. Among other things, the statute prohibits the knowing furnishing of false information to credit reporting agencies and requires certain corrective measures once notice of a consumer dispute is received from a credit reporting agency. 15 u.s.c. 1681s 2(a) (1) & (b) (1); see Markovska can ----------~-------------- 867 F. Supp. 2d 340, 343-44 (E.D.N.Y. Home 2012) § (describing separate provisions governing conduct fore and after receiving notice of a dispute from a credit reporting agency) . Congress committed most of § 1681s-2 exclusively to administrative enforcement, but created a narrowly tailored p § cause of action for some olations. See 15 U.S.C. 1681n (creating private right of action); 15 U.S.C. 10 § 1681s 2 (c) (excluding claims for olation of 1681s-2 (a) ambit of § 1681n); 15 U.S.C. §§ 1681s, 1681s-2(d) from the (providing for administrative enforcement of various provisions by specific federal and state agencies). Specifically, the FCRA autho zes a federal cause of action for "willful or negligent" failure to correct a credit reporting error after "notice of a credit dispute from a credit reporting agencyU under § 1681s-2(b), but permits only regulatory enforcement of the more general duties set forth in § 1681s-2(a). Markovs 867 F. Supp. 2d at 343­ 44; see also Donovan, 574 F. Supp. 2d. at 205 of action furnishing of § 1681s-2(a)); - - Is Ise credit information in violation 432 F. Supp. 2d at 191 (no private right of action against a" t (no private right rnisher of information . . until consumer notifies a credit reporting agency of an inaccuracy . and the agency then informs the furnisher"). By limiting t protect available remedies, Congress sought to s carefully balanced regulatory scheme aga st the impact of litigation that was not specifically authorized. "'The extra federal remedy in § 1681s-2 was accompanied by extra preemption in § 1681t(b) (1) (F), in order to implement t new plan under which reporting to credit agencies would be supervised by state and federal administrative agencies rather 11 than judges.'" Macpherson, 665 F.3d at 48 Bank of America, 659 F.3d (quoting Purcell v. 2, 625 (7th Cir. 2011)); see also Islam, 432 F. Supp. 2d at 187 (noting the nexpress intent of furnishers of information Congress to have the conduct regulated exclusively by governmental agencies" {quoting Quigley v. Penns No. COO-1661CRB, 2000 WL 1721069, at *3 (N.D. Cal. Nov. 8, 2000)) (emphasis removed)); Abbett v. Bank of America, No. 3:04CV 01102 WKW VPM, 2006 WL 581193, at *5 (M.D. Ala. March 8, 2006) state law cla nba information" to on the ssemination of (holding all Ise credit preempted) . aintiff states in her Opposition all of required for preemption: (I) the U.S.C. §§ 1681t{b) (1) (F) & elements ral FCRA, specifically 15 1681s-2(a) (1) (A), preempts state law claims concerning the furnishing of incorrect credit information to credit reporting agencies: N.Y. Gen. Bus. Law § 380-s); § (2) r claim is brought under 380-1 (for violations of Gen. Bus. Law (3) Section 380-1 requires "the transmission or provision to a consumer reporting agency of information" as a result of an identity theft; and (4) she has al ged that incorrect information was furnished to credit agencies as a result of the identity ft. See Opp. Br. at 5-6: see also Mov. 12 Br. at 8-10. However, she maintains that her claim is not preempted because it is "not related H to the subject matter of §1681s-2, Opp. Br. at 5, i.e., the furnishing of information to credit reporting agenc s. However, the furnishing of Ise information to credit reporting agencies is an element of her claim under Gen. Bus. Law § 380-1. Plaintiff mischaracterizes the requirement in § 380-1 that "false credit reportingH have arisen from an identity theft as a "jurisdictional criteria. H Opp. Br. at 6. The state law does not contain any "jurisdictional H Instead, the furnishing of incorrect credit in teria. rmation to cause an incorrect credit report is an inescapable element of the claim, ling squarely within the ambit of 15 U.S.C. § 1681s 2. See 15 U.S.C. § 1681t (b) (1) (F). Although t claims also contain other elements (i.e., Gen. Bus. Law § 380 s) not directly governed by 15 U.S.C. § 1681s 2, presumption is still appropriate given the significant overlap of 15 U.S.C. § 1681s­ 2. The statutory language preempting state law "with respect toH the "subject matter H of formation is "broad and explicit. H 13 rnishing credit . v No. 07-CV-6349T, 2008 WL 4507613, at *3 (W.D.N.Y. Sept. 30, 2008) v. Swanson, No. 07-CV-3376 Minn. July 30, 2007)), aff' (quoting Consumer Data Indus. Ass'n (PJS/JJG), 2007 WL 2219389, at *4 583 F.3d 103, 105 06 (D. (2d Cir. 2009). Preemption here is not narrowly limited to laws focused solely on the "intentional furnishing of false credit reports." Opp. Br. at 6. Any furnishing of information to credit agencies, including conduct that is not prohibited by the federal law, falls within its "subject matter." Consumer Data, 2007 WL 2219389, at *4. When determining the scope of similar statutory preemption provisions, the Supreme Court, applying the phrase "relating to" - the equivalent of "with respect to" here - holds that "relating to" indicates a "broad scope" and "expansive sweep," preempting state laws" in connection with," or "with reference to" the preempted subject matter. Cal. Div. of Labor Standards Enforcement v. U.S. 316, 324-25 (1997). Constr. If the law cont 519 ns a "reference" to the preempted subject matter, "or makes the existence of preempted subject matter essential to the law's operation, then that state law is preempted by the federal law." Met an -----"~--- _T~a_x_i~c~a~b:__B~o~a~r~d~o~f~~~~~:~~~_-=o~f~N~e~w~Y~o~ r~kr 14 615 F.3d 152, 156 (2d Cir. 2010) 325) (citing Cal. Div. of Labor Standards, 519 U.S. at (holding taxicab hybrid fuel regulations preempted by federal Energy Policy and Conservation Act). N.Y. Gen. Bus. Law § 380-1 has a "reference to U subject matter of § 1681s-2, which is "essential to the law's operation,U because § 380-1 requires the furnishing of information to credit agencies. Id. Moreover, theft as it af § 1681s-2 specifically addresses identity s credit reporting, which is very same subject as § 380 1. See 15 U.S.C. § 1681s-2(a) (6) (requiring reasonable procedures to correct information affected by ident a y t ft and prohibiting furnishing certain information er report of ident y theft). Therefore Plaintiff's first and second causes of action are entirely incorrectly reI her cla empted. Galper s on two authorities proposition that t is not preempted. In Scott v. Real Estate Fin. the Second Circuit did not cons r preemption at all, and the aim in that case did not concern furnishing i 15 U.S.C. § 1681s rmation under ,but rather obtaining a credit report under lse pretenses and failing to make certain notices to consumers. 183 F.3d 97, 99 100 (2nd Cir. 1999) §§ 1681q, 1681b (3) (E)). Moreover, in 1995 t ting 15 U.S.C. time of the events at issue in Scott - the express preemption provisions 15 15 U.S.C. § 1681t(b) had not been enacted, and the FCRA contained only a savings clause preserving consistent state law. id. at 100 n.1 ( ting pre-1996 amendments version of FCRA); 15 U.S.C. § 1681t (as in effect prior to September 30, 1996) (enacted in Act of Oct. 26, 1970 Pub. L. 91-508, Title VI, § 601, 84 Stat. 1136)). ------------ Inc. v. Hawks, also cited Biosa One, by Plaintiff, is also concerned with obtaining a credit report under false pretenses, and the Court dismissed the claim under both state and federal law, mooting any preemption question, which was not raised or considered. 639 F. Supp. 2d 358, 368 (S.D.N.Y. 2009). The Third Cause Of Action Is Inadequately Pled Plaintiff's Third Cause of Action for "Conversion of Intangible Property" fails to allege that s was deprived of the use of her "identifying information," which is the property that she aIle s was converted. AC The Plaintiff has ~ 38. leged that Chase converted her property by "cornrnit[ing] an unautho zed intentional act by exercising dominion or control over [p]laintiff's intangible rsonal property (her identifying in 16 rmation) and deprived [her] of that property ~ r an indefinite amount of time." AC 38. However, even for intangible property, the tort conversion requires that the Plaintiff be deprived of her use of the property; "a defendant who does not 'exclude the owner from the exercise of [her] rights[] is not liable for conversion'" 18 Misc. 3d 1119(A), 856 N.Y.S.2d 498, 2008 WL 192099, at *5 (Sup. Ct. N.Y. County Jan. 14, 2008) 774 (quoting State of New York v. Seventh N.E.2d 702, 710, 98 N.Y.2d 249, 25960, 746 N.Y.S.2d 637, 645 (N.Y. 2002)). No facts are alleged to support a plausible inference that she was actually denied the use of her own "identifying information" and the conclusory recitation of the element of deprivation is inadequate under Fed. R. Civ. P. 8. See Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). The tort of conversion is traditionally defined as '"the unauthorized assumption and exercise of the right of ownership over goods belonging to another to t exclusion of the owner's rights.'" Leser, 2008 WL 192099, at *5 (quoting Seventh 774 N.E.2d at 710, 98 N.Y.2d at 259, 746 N.Y.S.2d at 645). Here Plaintiff has alleged that s 17 was the form of her deprived of "intangible property" "identifying information," and the only identifying information mentioned in the Complaint is license number. AC ~ aintiff's name and driver's ff v. Nationwide Mut. Ins. Co. 24. In the New York Court of Appeals recognized that intangible property could be subject to a conversion claim, but only where, as in the case of tangible property, the plaintiff is entirely deprived of the use of property. 864 N.E.2d 1272, 1273, 1276-78, 8 N.Y.3d 283, 292 93, 832 N.Y.S.2d 873, 879 (N.Y. 2007) (holding that computer files could conversion claim, where the subject of a aintiff was entirely denied use of those files). court in Leser dismissed a conversion claim ve simi r to Galper's. 2008 WL 192099. The plaintiff in Leser, like Galper here, unsuccessfully alleged identity the by the defendants' unauthorized use of her name, as well as trademarks, photos and other personal information, and she also brought a claim for conversion for the unauthorized use of images from her website and her trade name. Id. at *1, *3, *5. The court dismissed the conversion claim, holding that the tort of conversion cannot lie where the aintiff was not deni the use of her purportedly converted property - in Leser the trade name 18 ng information." Id. and photos; in this case Galper's "identi at *5. In her opposition br f, aintiff concedes that, notwithstanding the alleged misuse of retained r identity, she "still r name and identifying information. u Opp. Br. at 9. Although Galper has alleged that her personal bank accounts were closed as an indirect result of the conspirators' use identifying information, AC ~~ 10, 28, t her does not satisfy missing element of deprivation. Galper was allegedly deprived of the use of certain bank accounts, not of her identifying information. Plaintiff's "identifying information" is akin to t computer files in A & G Research, Inc. v. GC Metrics, Inc., where the court held that because the the p a was only copi from intiff's computers - and the plaintiff still could use data there could be no conversion cl unauthori for the allegedly copying of that data. No. 05870/2007, 19 Misc. 3d 1136(A), 862 N.Y.S.2d 806, 2008 WL 2150110, at *26-*27 (Sup. Ct. Westchester County May 21, 2008); see also Trustforte Co Eisen, No. 600521/2005, 10 . v. sc. 3d 1064(A), 814 N.Y.S.2d 565, 2005 WL 3501587, at *2 (Sup. Ct. N.Y. County Nov. 15, 2005) (dismissing c im for conversion of customer lists and other 19 business records because fendant only copied the informat and did not deprive plaintiff of the use of it). Plaintiff relies on cases construing federal criminal statutes to support her broad and incorrect pronouncement that "in the Second Circuit . . Conversion includes the 'misuse and an unauthorized manner.'" Opp. abuse' of property or its use ' Br. at 8 9. But federal statutory cases Galper cites have nothing to do with common law conversion. See United States v. rard, 601 F.2d 69 (2d Cir. 1979) which prohibits theft Sam (construing 18 U.S.C. § 641, government property); United States v. Inc., 506 F. Supp. 380, 390 (E.D.N.Y. 1981) --------~~----- (construing 18 U.S.C. § 2314, which proh its interstate transportation of stolen property) . The Second rcuit specifically recognized that: According to New York law, "[clonversion is the unauthorized assumption and exercise of the ght of ownership over goods belonging to another to the exclusion of the owner's rights.". . This includes a "denial or olation the pla iff's dominion, rights, or possession" over her property. It also requires that the defendant exclude the owner from exercis her rights over the goods. 20 f v. Nationwide Mut. Ins. Co. Cir. 2006) (alteration original) 460 F.3d 400, 403-04 (2d (internal quotation marks and citations omitted); see also, Pac. M. Int'l Co . v. Raman Int'l Gems, Ltd., 888 F. Supp. 2d 385, 396 (S.D.N.Y. 2012) (same) h Int'l (collecting cases); RemoteMDx, Inc., 06 CIV. 3915, 2008 WL 417 Sept. 10, 2008); Bri ~~c~~_. __ ~ __ ~ Inc. v. 35, at *3 (S.D.N.Y. L.P. v. Pate ______________ 81 F. Supp. 2d 509,51617 (S.D.N.Y. 2000). Here, the AC does not allege that Plaintiff was deprived of use of her identity. Accordingly, the conversion aim will be dismissed. Defendant's Contentions Regarding Inadequacy of Allegations And Plaintiff's Alleged Damages Are Not Recoverable Under N.Y. Gen. Bus. Law § 380-s Are Moot Defendant contends that Plaintiff failed to plead fraud with particularity under Rule 9(b) and the alleged damages she seeks are not recoverable for her claims under N.Y. Gen. Bus. Law § 380-s. Plaintiff's First, Second and Third Causes of Action are preempted by federal law, and Plaintiff's Third Cause of Action Is Inadequately Pled; as such, Defendant's contentions are moot. 21 Conclusion Given the reasoning above, Defendant's motion to dismiss is granted, and motion to strike is denied as moot. The AC is dismissed with leave granted to replead within 20 days. It is so ordered. New York, NY March (t(, 2~3 ,~ ROBERT W. SWEET 22