Oparaji v. Municipal Credit Union ( 2022 )

21-1518-cv
Oparaji v. Municipal Credit Union
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
15th day of April, two thousand twenty-two.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
MICHAEL H. PARK,
MYRNA PÉREZ,
Circuit Judges.
__________________________________________
MAURICE OPARAJI,
Plaintiff-Appellant,
v. 21-1518-cv
MUNICIPAL CREDIT UNION,
Defendant-Appellee.
__________________________________________
For Plaintiff-Appellant: Maurice Oparaji, pro se, Rosedale, NY.
For Defendant-Appellee: Brian S. Gitnik, Litchfield Cavo, LLP,
New York, NY.
Appeal from an order of the United States District Court for the Southern District of New
York (Cronan, J.; Netburn, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Maurice Oparaji (“Oparaji”), pro se, appeals from a June 14, 2021
opinion and order of the district court, dismissing Oparaji’s federal-law claims for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6) and declining to exercise supplemental
jurisdiction over Oparaji’s remaining state-law claim. In 2016, Oparaji’s account with
Defendant-Appellee Municipal Credit Union (“MCU”) was charged a $30 overdraft fee on sixty-
nine separate occasions. Oparaji subsequently filed suit, alleging that MCU had charged these
overdraft fees without first obtaining his affirmative consent, in violation of New York law; the
Electronic Funds Transfer Act (“EFTA”), 15 U.S.C. § 1693 et seq.; and §§ 1031(a), 1036(a)(1),
1054, and 1055 of the Consumer Financial Protection Act of 2010 (“CFPA”), 12 U.S.C.
§§ 5531(a), 5536(a)(1), 5564, 5565. Oparaji sought damages and a declaratory judgment under
the Declaratory Judgment Act, 28 U.S.C. § 2201. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues on appeal.
* * *
As an initial matter, we conclude that Oparaji has waived many of the arguments that he
advanced before the district court by failing to address them on appeal. Specifically, he fails to
address the dismissal of his putative claims under the CFPA and the Declaratory Judgment Act,
and he makes no meaningful argument either that the district court abused its discretion by
declining to exercise supplemental jurisdiction or that it erred in denying his motion for partial
summary judgment. These arguments are accordingly waived. Moates v. Barkley, 147 F.3d 207,
209 (2d Cir. 1998) (per curiam) (noting that this Court “need not, and normally will not, decide
2
issues that a party fails to raise in his or her appellate brief”); Gerstenbluth v. Credit Suisse Secs.
(USA) LLC, 728 F.3d 139, 142 n.4 (2d Cir. 2013) (holding that a pro se appellant forfeited all
claims against one appellee by referencing the district court’s adverse ruling only “obliquely and
in passing”). The only remaining challenge to the district court’s ruling is Oparaji’s EFTA claim.
We review de novo a district court’s dismissal of a complaint for failure to state a claim,
accepting all factual allegations as true and drawing all reasonable inferences in the plaintiff’s
favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). To survive a motion
to dismiss under Rule 12(b)(6), the complaint must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will
have “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 (2009).
Oparaji alleged that MCU violated Regulation E of the EFTA, 12 C.F.R. § 1005.17(b)(1),
by charging his account $2,070 in overdraft fees without first obtaining his affirmative consent
(i.e., his “opt-in”) for overdraft protection. The EFTA aims to “provide a basic framework
establishing the rights, liabilities, and responsibilities of participants in electronic fund . . . transfer
systems.” 15 U.S.C. § 1693(b). The Consumer Financial Protection Bureau has the power to
prescribe regulations to carry out the purposes of the EFTA. Id. § 1693b. Those regulations,
codified in Regulation E, include the “opt-in rule,” which provides: “[A] financial institution
holding a consumer’s account shall not assess a fee or charge on a consumer’s account for paying
an ATM or one-time debit card transaction pursuant to the institution’s overdraft service,” unless,
among other things, it first provides notice and obtains the consumer’s affirmative consent. 12
3
C.F.R. § 1005.17(b)(1) (emphasis added); see also 12 C.F.R. Supp. I § 1005.17(b) at ¶ 8 (“[T]he
[opt-in] rule does not prohibit an institution from assessing such [an overdraft] fee if the negative
balance is attributable in whole or in part to [an] . . . ACH . . . transaction not subject to the
prohibition on assessing overdraft fees in § 1005.17(b)(1).”). 1
Oparaji sued under a section of the EFTA that provides a private right of action against
defendants who violate “any provision of [the EFTA, 15 U.S.C. §§ 1693–1693r].” 15 U.S.C.
§ 1693m. Although Oparaji does not specify which of these statutory provisions MCU violated
when it charged him overdraft fees without an affirmative opt-in under Regulation E, we need not
address that issue because Oparaji’s transactions are clearly not covered by the opt-in rule. The
overdraft fees were coded “ACH NSF FEE,” or “automated clearing house non-sufficient funds
fee,” and most of the fees were attributable to PayPal transfers. Crucially, none of the fees were
attributable to ATM or one-time debit transactions. We thus conclude, as did the district court,
that the opt-in rule is inapplicable and Oparaji has failed to state a claim related to Regulation E. 2
1
For a consumer to “opt-in,” the institution must provide the consumer “with a notice in
writing . . . describing the institution’s overdraft service”; provide “a reasonable opportunity for
the consumer to affirmatively consent, or opt in, to the service for ATM and one-time debit card
transactions”; obtain the consumer’s “affirmative consent, or opt-in, to the institution’s payment
of ATM or one-time debit card transactions”; and provide the consumer with confirmation of that
consent in writing. 12 C.F.R. § 1005.17(b)(1)(i)–(iv).
2
Oparaji also challenges the magistrate judge’s report and recommendation, which was adopted
in part by the district court. Specifically, Oparaji alleges that, by using ellipses, the magistrate
judge misconstrued the scope of Regulation E. We conclude that the omitted language had no
bearing on the magistrate judge’s analysis, and we accordingly reject this argument.
4
We have considered Oparaji’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
5