Joe Perry v. NCUA ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-1305
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JOE PERRY,
Appellant
v.
NATIONAL CREDIT UNION ADMINISTRATION, and/or its agents;
OCNAC #1 FEDERAL C.U., and/or its agents; JOHN DOE 1-99
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1:19-cv-00167)
District Judge: Honorable Noel L. Hillman
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
November 16, 2021
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Before: CHAGARES, BIBAS, and FUENTES, Circuit Judges
(Opinion filed: November 19, 2021)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
CHAGARES, Circuit Judge.
Joe Perry alleges that his estranged wife initiated a series of unauthorized
withdrawals totaling $65,000 from his accounts at a federal credit union. Perry sought to
recover the lost funds from the credit union, OCNAC #1 Federal C.U. (“OCNAC”), and a
government agency that regulates such entities, the National Credit Union Administration
(“NCUA,” collectively with OCNAC, the “defendants”). He filed a lawsuit bringing
claims for negligence, breach of contract, and statutory violations. The District Court
dismissed Perry’s second amended complaint in full. On appeal, Perry only pursues the
breach of contract claim against OCNAC. Because Perry has failed to allege that
OCNAC breached a contractual provision, obligation, or duty, we will affirm.
I.
We write solely for the parties’ benefit, so our summary of the facts is brief. In
July 2014, Perry opened two accounts with OCNAC. Perry subsequently moved to a new
address and stopped receiving quarterly account statements. After visiting an OCNAC
branch, Perry learned that his estranged wife had initiated several unauthorized
transactions from his accounts. Perry communicated with an OCNAC representative,
who told him that the credit union’s attorney would contact him. After not receiving a
follow-up from OCNAC, Perry contacted the NCUA and submitted a consumer
assistance form to them concerning the unauthorized transfers. The NCUA’s Office of
Consumer Financial Protection subsequently denied Perry’s consumer assistance claim.
Perry also sent a letter to OCNAC raising his claims. OCNAC denied relief on the
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ground that Perry failed to provide notification within 60 days of any unauthorized
transactions.
Perry filed a pro se complaint in New Jersey state court, and NCUA removed the
case to the United States District Court for the District of New Jersey. With the
assistance of counsel, Perry filed an amended complaint in federal court asserting claims
of negligence and breach of contract against both defendants. He also brought statutory
claims under the Electronic Funds Transfer Act against OCNAC and under the Federal
Credit Union Act against NCUA. The District Court dismissed the amended complaint in
its entirety but permitted Perry leave to amend his breach of contract claims.
Perry filed a second amended complaint and also moved to compel OCNAC to
produce his account agreement. OCNAC maintained that it no longer had a copy of the
agreement because it was destroyed in a flood, and it was ordered to provide exemplar
versions of any lost documents. The District Court ultimately dismissed the breach of
contract claim against NCUA because it sought damages in excess of the $10,000 limit
imposed by 28 U.S.C. § 1346(a). The claim for breach of contract against OCNAC was
dismissed for failure to state a claim. Perry timely appealed.
II.
The District Court had subject matter jurisdiction under 28 U.S.C. § 1442(a)(1)
and § 1367. We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s
grant of a motion to dismiss de novo and may affirm on any ground supported by the
record. Watters v. Bd. of Sch. Dirs. of City of Scranton, 975 F.3d 406, 412 (3d Cir.
2020). On a Rule 12(b)(6) motion, “we accept all factual allegations in the complaint as
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true and construe those facts in the light most favorable to the plaintiff[ ].” Newark Cab
Ass’n v. City of Newark, 901 F.3d 146, 151 (3d Cir. 2018). In determining whether the
plaintiff has stated a claim, we assess whether the complaint “contain[s] sufficient factual
allegations, taken as true,” to plausibly allege a claim on its face. Id. (quotation marks
omitted).
III.1
Under New Jersey law, a breach of contract claim requires that a plaintiff allege
“that the parties entered into a valid contract, that the defendant failed to perform his
obligations under the contract, and that the plaintiff sustained damages as a result.”
Murphy v. Implicito, 920 A.2d 678, 689 (N.J. Super. Ct. App. Div. 2007). In support of
his claim against OCNAC, Perry alleges that the credit union had a contractual
responsibility to protect his funds from unauthorized withdrawals. But Perry has failed to
plead or otherwise identify a contractual provision, requirement, or duty that OCNAC
breached and instead only points to a general obligation to safeguard funds. As noted by
1
To preserve an issue for appeal, “an appellant’s opening brief must set forth and address
each argument the appellant wishes to pursue . . . .” Barna v. Bd. of Sch. Directors of
Panther Valley Sch. Dist., 877 F.3d 136, 145 (3d Cir. 2017); see also Norman v. Elkin,
860 F.3d 111, 129–30 (3d Cir. 2017). In Perry’s opening brief to this Court, he identifies
the issues for appeal as whether the District Court erred in dismissing his “claims for
breach of contract, negligence, and statutory violation against defendants . . . .” Perry Br.
1. But other than this general identification and a passing reference when discussing the
procedural history, Perry’s brief fails to offer argument related to any of his claims other
than the breach of contract claim against OCNAC. These “implicit references,” without
any argument or citation to authority, are insufficient to preserve issues related to the
dismissal of such claims on appeal. Barna, 877 F.3d at 148; see Elkin, 860 F.3d at 129–
30. We therefore decline to address these issues and turn to Perry’s claim for breach of
contract against OCNAC, which is properly before us.
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the District Court, Perry agreed that he could not “point to a specific breach of the
contractual relationship between OCNAC and Plaintiff.” Appendix 15 (quotation marks
omitted). Perry attributes this inability to the fact that his account agreement with
OCNAC was destroyed or missing. But it is uncontested that OCNAC complied with the
order to produce exemplar account agreements, which likewise did not encompass a
contractual obligation along the lines urged by Perry. The District Court therefore did
not err in dismissing Perry’s breach of contract claim against OCNAC for failure to state
a claim. 2
IV.
For the foregoing reasons, we will affirm the District Court’s Order.
2
Perry also argues that a variety of other contracts not alleged in the complaint were
breached through a failure to maintain his account records, including OCNAC’s bylaws
and the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801, et seq. Perry Br. 16–18. Before the
District Court, Perry raised similar arguments in his opposition to defendants’ motion to
dismiss, and the District Court was well-within its discretion in denying him further leave
to amend. See In re Allergen Erisa Litig., 975 F.3d 348, 356–57 & n.13 (3d Cir. 2020).
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