Consequently, the new Offender charged the Plaintiff overdraft charges at the time of or after control Mass Roadway Group’s debits

While the noted above, with the , the latest Plaintiff commenced it classification action

Toward , Bulk Road started good debit deal off $ninety regarding the Plaintiff’s family savings in Ny from the ACH System. This new fee are canned just like the a debit causing the Accused taking this matter on the Plaintiff’s account. This new fee used solely to help you focus and you may failed to slow down the quantity of the newest Plaintiff’s $three hundred financial obligation.

Bulk Highway Group’s constant debits of your own Plaintiff’s bank account which have brand new Defendant was the cause of Plaintiff’s membership to go into on the a poor harmony.

Into the , Bulk Roadway initiated an excellent debit purchase regarding $ninety from the Plaintiff family savings toward Accused within the This new York. New commission try canned once the a debit evoking the Accused delivering this number in the Plaintiff membership. As a result, the latest Plaintiff is billed of the and you can repaid for the Accused an enthusiastic NSF came back items percentage off $35.

The fresh new proposed group is defined as “[a]ll BofA account holders inside the Nyc whoever membership, within the last half a dozen (6) age before the brand new processing in the action to the go out regarding class qualification, had been debited getting Illegal Payday loans

The latest Judge enjoys brand new legislation more than this action pursuant to help you twenty-eight You.S.C. §§ 1332(d)(2) and you can (6) of one’s Category Action Fairness Operate of 2005.

To your , the latest Accused went pursuant so you can Signal twelve(b)(6) so you’re able to dismiss the complaint getting inability to say a state upon and that save are offered.

Under Federal Rule of Civil Procedure payday loans ME 12(b)(6), a defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must provide grounds upon which their claim rests through “factual allegations sufficient ’to raise a right to relief above the speculative level.'” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007)). In other words, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Starr v. Sony BMG Sounds Entm’t, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Wire L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)(citing Spaces v. Date Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Hayden v. County from Nassau, 180 F.3d 42, 54 (2d Cir. 1999)). “Where a document is not incorporated by reference, the court may [nevertheless] consider it where the complaint ‘relies heavily upon its terms and effect,’ thereby rendering the document ‘integral’ to the complaint.” DiFolco, 622 F.3d at 111 (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)). B. The newest Breach of Deal Claim

“In New York, a claim for breach of contract requires proof of: ‘(1) a valid contract; (2) plaintiff’s performance; (3) defendant’s failure to perform; and (4) damages resulting from the breach.'” During the lso are Scotts EZ Vegetables Litig., No. 12 CV 4727 (VB), 2015 WL 670162, at *10 (S.D.N.Y. )(quoting Macaluso v. You.S. Existence. Inches. Co., No. 03 Civ. 2337 (GEL), 2004 WL 1497606, at *3 (S.D.N.Y. )(citing Furia v. Furia, 116 A.D.2d 694, 695, 498 N.Y.S.2d 12 (2d Dep’t 1986)).