United States District Court, D. Maryland
L. Hollander United States District Judge.
Tiffany Neal, a disabled veteran, filed a class action suit
against Pentagon Federal Credit Union (“PenFed”),
defendant. ECF 1 (the “Complaint”). In a
“First Amended Class Action Complaint” (ECF 13,
the “Amended Complaint”), she alleges that PenFed
unlawfully withdrew disability benefits from her PenFed
deposit account to cover overdue loan payments. Pursuant to
Fed.R.Civ.P. 23(b)(3) and (b)(2), Neal brings the action
“on behalf of herself and all other similarly situated
veterans who have deposit accounts with PenFed and have
received disability benefits through these same accounts
which were . . . taken to cover loan defaults.” ECF 13,
Amended Complaint, Neal asserts the proverbial kitchen sink
of claims. She contends that PenFed's seizure of her
benefits violated her federal rights under 38 U.S.C. §
5301, which statutorily protects disability benefits owed to
veterans; the Truth in Lending Act, 15 U.S.C. §§
1601 et seq. (“TILA”); and the
Electronic Fund Transfer Act, 15 U.S.C. §§ 1693
et seq. (“EFTA”). Id.
¶ 6. In addition, she asserts State claims for breach of
contract, negligence, negligent misrepresentation,
constructive trust, accounting, unjust enrichment,
conversion, as well as a violation of the Maryland Consumer
Protection Act (“MCPA”), Md. Code (2013 Repl.
Vol., 2017 Supp.), §§ 13-101 et seq. of
the Commercial Law Article (“C.L.”). Id.
¶¶ 85-140. Neal seeks damages and injunctive
relief, in addition to attorneys' fees and costs.
Id. ¶ 4.
has moved to dismiss the Amended Complaint, pursuant to
Fed.R.Civ.P. 12(b)(6), for failure to state a claim. ECF 16
(the “Motion”). The Motion is supported by six
exhibits. See ECF 16-1 to ECF 16-6. In the Motion,
defendant argues that all claims fail as a matter of law.
Id. at 1. Neal opposes the Motion. ECF 17
(“Opposition”). PenFed has replied. ECF 18
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, the Motion
shall be granted in part and denied in part.
is a “United States federal credit union headquartered
in McClean, Virginia, chartered and regulated under the
authority of the National Credit Union Administration.”
ECF 13, ¶ 11. It “operates numerous locations in
Maryland, ” but also has locations in Washington, D.C.,
Virginia, and at several military bases. Id.
a disabled, honorably discharged veteran of the United States
Army. Id. ¶ 10. In or around 2002, Neal opened
an account with PenFed. Id. ¶ 14. Since then,
“Neal has maintained several accounts” with
PenFed (id. ¶ 15), including a deposit account
in which “Neal has received her Veteran disability
benefits.” Id. ¶ 16. Neal has relied on
these benefits to “meet all her basic needs” and
to “maintain and support her family and
dependents.” Id. ¶ 17.
addition, “Neal entered into an agreement to access a
loan and credit from PenFed.” Id. ¶ 18.
Neal has two loan accounts with PenFed. Id.
Plaintiff asserts that she “did not Specifically [sic]
authorize electronic funds transfer and/or assignment of her
disability benefits to [PenFed] in the event of a default on
repayment of any of the loans or lines of credit.”
Id. ¶ 20. Moreover, plaintiff asserts that,
“[d]ue to the increased financial burden caused by
sudden health emergencies she suffered, ” she
“ended up defaulting on her monthly payments to PenFed
on the loan accounts.” Id. ¶ 21.
According to Neal, she “informed [PenFed] of the
financial difficulties she was facing.” Id.
28, 2017, Neal “received a direct deposit of her
Veterans disability benefits . . . in the amount of $3,
282.78.” Id. ¶ 23. However, on July 4,
2017, PenFed transferred $49.66 of her disability benefits
“to cover a delinquency on her loans accounts without
Neal's knowledge, authorization or consent.”
Id. ¶ 24. That same day, PenFed
“subjected” Neal “to a $35.84 interest
charge . . . and a $227.14 finance charge” on her loan
accounts. Id. PenFed also “transferred $559.26
of [Neal's] veteran's disability benefits from
her” deposit account “to cover a default on
repayment of her loan.” Id. ¶ 25.
Further, Neal contends that she “was not immediately
notified that her veteran's disability benefits had been
taken out by PenFed.” Id. ¶ 25.
weeks later, on July 29, 2017, Neal received another direct
deposit of benefits in the amount of $3, 282.78. Id.
¶ 26. Neal claims that on August 2, 2017, PenFed again
“transferred $550.65 of [Neal's] veteran disability
benefits” from her deposit account “to cover a
loan payment delinquency without her knowledge, authorization
or consent.” Id. ¶ 27.
August 30, 2017, Neal received another direct deposit of $3,
282.78. Id. ¶ 28. And, on September 2, 2017,
defendant “transferred $559.26 of [Neal's] Veteran
Disability Benefits . . . to cover a default on repayment of
her loans.” Id. ¶ 29.
Neal received a fourth direct deposit of $3, 282.78 on
September 27, 2017. Id. ¶ 30. Over the
following week, PenFed withdrew money on three separate
occasions- $1, 124.00 on September 28, 2017, and $59.05 and
$551.59 on October 3, 2017-“to repay a delinquency on
her loans.” Id. ¶¶ 31-33.
emphasizes that “[f]or all of the foregoing withdrawals
PenFed never gave Neal notice that her veteran's
disability benefits would be unilaterally taken out to repay
any loan delinquencies on her loan accounts with
PenFed.” Id. ¶ 34. Further, Neal
maintains that “PenFed never notified Neal which
specific loan delinquencies [were] being repaid.”
Id. ¶ 35. Moreover, Neal argues that
PenFed's “assignment of funds from deposit accounts
of members without prior notice deprived Neal” and
others of their veterans' benefits. Id. ¶
facts are included in the Discussion.
Motion is styled as a motion to dismiss under Fed.R.Civ.P.
12(b)(6). However, buried in a footnote (ECF 16 at 3 n.4),
PenFed asks the Court to consider the Motion, in the
alternative, as one for summary judgment under Fed.R.Civ.P.
56. A motion styled in this manner implicates the Court's
discretion under Fed.R.Civ.P. 12(d). See Kensington Vol.
Fire Dept., Inc. v. Montgomery Cty., 788 F.Supp.2d 431,
436-37 (D. Md. 2011).
a court “is not to consider matters outside the
pleadings or resolve factual disputes when ruling on a motion
to dismiss.” Bosiger v. U.S. Airways, 510 F.3d
442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a
court, in its discretion, may consider matters outside of the
pleadings, pursuant to Rule 12(d). If the court does so,
“the motion must be treated as one for summary judgment
under Rule 56, ” and “[a]ll parties must be given
a reasonable opportunity to present all the material that is
pertinent to the motion.” Fed.R.Civ.P. 12(d). When the
movant expressly captions its motion “in the
alternative” as one for summary judgment, and submits
matters outside the pleadings for the court's
consideration, the parties are deemed to be on notice that
conversion under Rule 12(d) may occur; the court “does
not have an obligation to notify parties of the
obvious.” Laughlin v. Metro. Wash. Airports
Auth., 149 F.3d 253, 261 (4th Cir. 1998).
district judge has “complete discretion to determine
whether or not to accept the submission of any material
beyond the pleadings that is offered in conjunction with a
Rule 12(b)(6) motion and rely on it, thereby converting the
motion, or to reject it or simply not consider it.” 5C
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1366 (3d ed. 2018). This discretion
“should be exercised with great caution and attention
to the parties' procedural rights.” Id. In
general, courts are guided by whether consideration of
extraneous material “is likely to facilitate the
disposition of the action, ” and “whether
discovery prior to the utilization of the summary judgment
procedure” is necessary. Id.
view, the footnote in defendant's Motion does not provide
adequate notice that it “could be disposed of as one
for summary judgment.” Laughlin, 149 F.3d at
261; see also Tsai v. Md. Aviation, 306 Fed.Appx. 1,
4 (4th Cir. 2008) (finding that the defendant's caption
“Motion to Dismiss, or in the Alternative, Motion for
Summary Judgment” provided notice of Rule 12(d)
conversion). Therefore, I shall consider the Motion as one
for dismissal under Rule 12(b)(6).
defendant may test the legal sufficiency of a complaint by
way of a motion to dismiss under Rule 12(b)(6). In re
Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines
v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th
Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393,
408 (4th Cir. 2010), aff'd sub nom., McBurney v.
Young, 569 U.S. 221 (2013); Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule
12(b)(6) motion constitutes an assertion by a defendant that,
even if the facts alleged by a plaintiff are true, the
complaint fails as a matter of law “to state a claim
upon which relief can be granted.”
a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed.R.Civ.P.
8(a)(2). That rule provides that a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” The purpose of the
rule is to provide the defendants with “fair
notice” of the claims and the “grounds” for
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-56 (2007).
survive a motion under Rule 12(b)(6), a complaint must
contain facts sufficient to “state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662,
684 (2009) (“Our decision in Twombly expounded
the pleading standard for ‘all civil actions' . . .
.”) (citation omitted); see also Willner v.
Dimon, 849 F.3d 93, 112 (4th Cir. 2017). But, a
plaintiff need not include “detailed factual
allegations” in order to satisfy Rule 8(a)(2).
Twombly, 550 U.S. at 555. Moreover, federal pleading
rules “do not countenance dismissal of a complaint for
imperfect statement of the legal theory supporting the claim
asserted.” Johnson v. City of Shelby, Miss.,
___ U.S. ___, 135 S.Ct. 346, 346 (2014) (per curiam).
the rule demands more than bald accusations or mere
speculation. Twombly, 550 U.S. at 555; see
Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,
350 (4th Cir. 2013). If a complaint provides no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action, ” it
is insufficient. Twombly, 550 U.S. at 555. Rather,
to satisfy the minimal requirements of Rule 8(a)(2), the
complaint must set forth “enough factual matter (taken
as true) to suggest” a cognizable cause of action,
“even if . . . [the] actual proof of those facts is
improbable and . . . recovery is very remote and
unlikely.” Twombly, 550 U.S. at 556 (internal
quotation marks omitted).
reviewing a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint” and must “draw all reasonable
inferences [from those facts] in favor of the
plaintiff.” E.I. du Pont de Nemours & Co.,
637 F.3d at 440 (citations omitted); see Semenova v. Md.
Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017);
Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473,
484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d
515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943
(2011). But, a court is not required to accept legal
conclusions drawn from the facts. See Papasan v.
Allain, 478 U.S. 265, 286 (1986). “A court decides
whether [the pleading] standard is met by separating the
legal conclusions from the factual allegations, assuming the
truth of only the factual allegations, and then determining
whether those allegations allow the court to reasonably
infer” that the plaintiff is entitled to the legal
remedy sought. A Soc'y Without a Name v. Cmm'w of
Va., 655 F.3d 342, 346 (4th. Cir. 2011), cert.
denied, 566 U.S. 937 (2012).
generally do not “resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses” through a Rule 12(b)(6) motion.
Edwards, 178 F.3d at 243 (quotation marks and
citation omitted). The purpose of the rule is to ensure that
defendants are “given adequate notice of the nature of
a claim” made against them. Twombly, 550 U.S.
at 555-56. But, “in the relatively rare circumstances
where facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a
motion to dismiss filed under Rule 12(b)(6).”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007) (en banc); accord Pressley v. Tupperware Long
Term Disability Plan, 533 F.3d 334, 336 (4th Cir. 2009);
see also U.S. ex rel. Oberg v. Penn. Higher Educ.
Assistance Agency, 745 F.3d 131, 148 (4th Cir. 2014).
However, because Rule 12(b)(6) “is intended [only] to
test the legal adequacy of the complaint, ”
Richmond, Fredericksburg & Potomac R.R. Co. v.
Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his
principle only applies . . . if all facts necessary to the
affirmative defense ‘clearly appear[ ] on the face
of the complaint.'” Goodman, 494 F.3d
at 464 (quoting Forst, 4 F.3d at 250) (emphasis
added in Goodman).
extent that the Amended Complaint lodges a claim of fraud,
Fed.R.Civ.P. 9(b) is pertinent.
preliminary matter, claims that sound in fraud, whether
rooted in common law or arising under a statute, implicate
the heightened pleading standard of Fed.R.Civ.P. 9(b).
See, e.g., E-Shops Corp. v. U.S. Bank N.A.,
678 F.3d 659, 665 (8th Cir. 2012) (“Rule 9(b)'s
heightened pleading requirement also applies to statutory
fraud claims.”); see also Spaulding v. Wells Fargo
Bank, N.A., 714 F.3d 769, 781 (4th Cir. 2013) (stating
that an MCPA claim that “sounds in fraud is subject
to the heightened pleading standards of Federal Rule of Civil
9(b) states: “In alleging fraud or mistake, a party
must state with particularity the circumstances constituting
fraud or mistake. Malice, intent, knowledge, and other
conditions of a person's mind may be alleged
generally.” Under the rule, a plaintiff alleging claims
that sound in fraud “‘must, at a minimum,
describe the time, place, and contents of the false
representations, as well as the identity of the person making
the misrepresentation and what he obtained
thereby.'” United States ex rel. Owens v. First
Kuwaiti Gen'l Trading & Contracting
Co., 612 F.3d 724, 731 (4th Cir. 2010) (citation
omitted). In other words, “‘Rule 9(b) requires
plaintiffs to plead the who, what, when, where, and how: the
first paragraph of any newspaper story.'” Crest
Construction II, Inc. v. Doe, 660 F.3d 346, 353 (8th
Cir. 2011) (citation omitted).
9(b) serves several salutary purposes:
First, the rule ensures that the defendant has sufficient
information to formulate a defense by putting it on notice of
the conduct complained of . . . . Second, Rule 9(b) exists to
protect defendants from frivolous suits. A third reason for
the rule is to eliminate fraud actions in which all the facts
are learned after discovery. Finally, Rule 9(b) protects
defendants from harm to their goodwill and reputation.
Harrison v. Westinghouse Savannah River Co., 176
F.3d 776, 784 (4th Cir. 1999) (citation omitted).
however, Rule 9(b) by its plain text permits general averment
of aspects of fraud that relate to a defendant's state of
mind. And, a “court should hesitate to dismiss a
complaint under Rule 9(b) if the court is satisfied (1) that
the defendant has been made aware of the particular
circumstances for which she will have to prepare a defense at
trial, and (2) that plaintiff has substantial prediscovery
evidence of those facts.” Id. Moreover, Rule
9(b) is “less strictly applied with respect to claims
of fraud by concealment” or omission of material facts,
as opposed to affirmative misrepresentations, because
“an omission ‘cannot be described in terms of the
time, place, and contents of the misrepresentation or the
identity of the person making the
misrepresentation.'” Shaw v. Brown &
Williamson Tobacco Corp., 973 F.Supp. 539, 552 (D. Md.
1997) (quoting Flynn v. Everything Yogurt,
HAR-92-3421, 1993 WL 454355, at *9 (D. Md. Sept. 14, 1993)).
limited circumstances, when resolving a Rule 12(b)(6) motion,
a court may consider documents beyond the complaint without
converting the motion to dismiss to one for summary judgment.
Goldfarb v. Mayor & City Council of Baltimore,
791 F.3d 500, 508 (4th Cir. 2015).
when a defendant moves to dismiss a complaint under Rule
12(b)(6), courts are limited to considering the sufficiency
of allegations set forth in the complaint and the
‘documents attached or incorporated into the
complaint.'” Zak v. Chelsea Therapeutics
Int'l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015)
(quoting E.I. du Pont de Nemours & Co., 637 F.3d
at 448). In particular, a court may properly consider
documents that are “explicitly incorporated into the
complaint by reference and those attached to the complaint as
exhibits.” Goines, 822 F.3d at 166 (citation
omitted); see also U.S. ex rel. Oberg v. Pa. Higher Educ.
Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014);
Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195,
198 (4th Cir. 2014); Am. Chiropractic Ass'n v. Trigon
Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004),
cert. denied, 543 U.S. 979 (2004); Phillips v.
LCI Int'l Inc., 190 F.3d 609, 618 (4th Cir. 1999).
“before treating the contents of an attached or
incorporated document as true, the district court should
consider the nature of the document and why the plaintiff
attached it.” Goines, 822 F.3d at 167 (citing
N. Ind. Gun & Outdoor Shows, Inc. v. City of S.
Bend, 163 F.3d 449, 455 (7th Cir. 1998)). Of import
here, “[w]hen the plaintiff attaches or incorporates a
document upon which his claim is based, or when the complaint
otherwise shows that the plaintiff has adopted the contents
of the document, crediting the document over conflicting
allegations in the complaint is proper.”
Goines, 822 F.3d at 167. Conversely, “where
the plaintiff attaches or incorporates a document for
purposes other than the truthfulness of the document, it is
inappropriate to treat the contents of that document as
did not attach any exhibits to her Amended Complaint. But,
FedPen attached six exhibits to its Motion. ECF 16-1 to ECF
16-6. These include the Promissory Note (ECF 16-1) that
appears to be signed by “Tiffany Neal”; the
Membership Agreement (ECF 16-2), which defines the terms of
membership for PenFed account holders; and the Cardholder
Agreement (ECF 16-3), which details the terms and agreements
of a PenFed credit card. The Membership Agreement and the
Cardholder Agreement are both unsigned. ECF 16-2 at 2; ECF
16-3 at 2-4. PenFed also appended to the Motion excerpts from
Neal's bank statements for the period June 25, 2017,
through October 25, 2017 (ECF 16-4, the “Consolidated
Bank Statements”), as well as an excerpt from
Neal's credit card statement of October 2, 2017. ECF 16-5
(the “Credit Card Statement”). Finally, FedPen
submitted a letter of September 28, 2017, from the
“Delinquency Control Center” to Neal, notifying
Neal that funds were taken from her savings account “to
pay the past due amount” on her credit card account.
ECF 16-6 (the “Notification Letter”).
Promissory Note is integral to the Amended Complaint because
it is referenced repeatedly, and because it appears to be the
basis of the Amended Complaint. ECF 13, ¶¶ 13, 18,
78, 86-88, 90, 93. But, Neal objects to the authenticity of
the Promissory Note. ECF 17 at 13. Specifically, she claims
that PenFed never provided her with a copy of the Promissory
Note. Id. In response, PenFed stresses that the
Amended Complaint “explicitly admits that the loan
agreement is an ‘enforceable contract' that was
‘signed by plaintiff.'” ECF 18 (citing ECF
13, ¶¶ 88, 130).
paragraph 130 of the Amended Complaint, Neal states, in part:
“The loan agreement signed by plaintiff and PenFed is
in violation of 38 U.S.C.S. § 5301 and is accordingly
void.” However, it is not clear if the loan agreement
and the Promissory Note are one and the same.
noted, the general rule is that “extrinsic evidence
should not be considered at the 12(b)(6) stage.”
Am. Chiropratic Ass'n v. Trigon Healthcare,
Inc., 367 F.3d 212, 234 (4th Cir. 2004). “At the
motion to dismiss stage, documents attached to a motion to
dismiss need not be accompanied by a formal declaration
authenticating them.” Six v. Generations Fed.
Credit Union, 891 F.3d 508, 512-13 (4th Cir. 2018)
(quotation marks and citation omitted). However, the Fourth
Circuit has concluded “that when a defendant attaches a
document to its motion to dismiss, a court may consider it in
determining whether the dismiss the complaint if it was
integral to and explicitly relied on in the complaint and
if the plaintiffs do not challenge its
authenticity.” Id. (internal quotation
marks, parentheses, and citation omitted) (emphasis added).
the Amended Complaint references a loan agreement Neal signed
with PenFed (ECF 13, ¶¶ 88, 130), Neal has not
admitted that the proffered Promissory Note is, in fact, the
agreement she signed. Despite PenFed's assertions that
the agreement is authentic, there is no other evidence
supporting the authenticity of the document, aside from what
appears to be Neal's signature on the Promissory Note.
ECF 16-1 at 2. Therefore, at this juncture, I decline to
consider the Promissory Note as evidence.
addition, Neal questions the authenticity of the Membership
and Cardholder Agreements. ECF 17 at 13. As a result, I may
not consider those exhibits. But, even if those agreements
were of unquestioned authenticity, neither document is
incorporated into the Amended Complaint. As such, the
exhibits are inappropriate to consider in connection with a
motion to dismiss. See Zak, 780 F.3d at 606
(“Consideration of extrinsic documents during the
pleading stage of litigation improperly converts the motion
to dismiss into a motion for summary judgment.”).
Consolidated Bank Statements are foundational to the Amended
Complaint, because Neal explicitly relies on them (ECF 13,
¶ 23-33) and does not challenge their authenticity. ECF
17 at 13. The other exhibits-the Credit Card Statement (ECF
16-5) and the September 28, 2017 Notification Letter (ECF
16-6)-are not integral to the Amended Complaint. Therefore,
it would be inappropriate to consider them at this stage.
See Zak, 780 F.3d at 606.
Choice of Law
is founded on federal question jurisdiction, supplemental
jurisdiction, as well as diversity of citizenship. ECF 13,
¶ 8-9. Neal assumes, without discussion, that Maryland
law applies to her State claims. See ECF 17 at
16-30. And, one of Neal's State claims is brought under
the MCPA. ECF 13, ¶ 164-76. But, PenFed argues that the
Amended Complaint “does not allege sufficient facts to
determine whether Maryland law applies to Neal's
state-law claims.” ECF 16 at 8 n.5. For the purpose of
this Motion, however, PenFed assumes all State claims are
asserted under Maryland law. Id.
choosing the applicable state substantive law while
exercising diversity or supplemental jurisdiction, a federal
district court applies the choice of law rules of the forum
state.” Ground Zero Museum Workshop v. Wilson,
813 F.Supp.2d 678, 696 (D. Md. 2011); see also Colgan
Air, Inc. v. Raytheon Aircraft Co., 507 F.3d 270, 275
(4th Cir. 2007) (per curiam); Baker v. Antwerpen
Motorcars Ltd., 807 F.Supp.2d 386, 389 n.13 (D. Md.
2011). Maryland is, of course, the forum state.
contract claims, Maryland applies the law of the state in
which the contract was formed (“lex loci
contractus”), unless the parties to the contract
agreed to be bound by the law of another state. See,
e.g., Am. Motorists Ins. Co. v. ARTRA Group, Inc., 338
Md. 560, 573, 659 A.2d 1295, 1301 (1995); TIG Ins. Co. v.
Monongahela Power Co., 209 Md.App. 146, 161, 58 A.3d
497, 507 (2012), aff'd, 437 Md. 372, 86
A.3d 1245 (2014). Neal does not explicitly allege that she
entered into the contract while in Maryland, but notes that
she resides in Howard County, Maryland (ECF 13, ¶ 10);
that PenFed “operates numerous locations in
Maryland” (id. ¶ 11); and that PenFed was
engaged in “providing a variety of loans, savings and
deposit accounts, credit cards and other financial services
to Veterans in the State of Maryland . . .”
Id. ¶ 12. As noted, PenFed does not dispute the
application of Maryland law. ECF 16 at 8 n.5. Therefore, as
to Neal's contract claims, I shall apply Maryland law.
question of class certification is not before the Court. At
this juncture, Neal need only show that she has stated a
cause of action. Popoola v. M.D. Individual Practice
Ass'n, Inc., DKC-03-3653, 230 F.R.D. 424, 433 (D.
23(c)(1) provides: “At an early practicable time after
a person sues or is sued as a class representative, the court
must determine by order whether to certify the action as a
class action.” As a result, “[e]ither plaintiff
or defendant may move for a determination of whether the
action may be certified under Rule 23(c)(1).” 7AA
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1785 (3d ed. 2018). Here, neither Neal
nor PenFed has moved, pursuant to Rule 23(c)(1), for a ruling
on class certification. Thus, whether Neal has satisfied the
requirements under Rule 23 for a class action is not ripe for
resolution. See Lesser v. Balt. City Bd. of Sch.
Comm'rs, JKB-17-046, 2017 WL 2733938, at *2 (D. Md.
June 26, 2017) (“[A]nalysis of a prospective
class's compliance with Rule 23 is not appropriately
considered on a motion to dismiss, but should instead be
addressed in a motion brought pursuant to Rule
23(c)(1)(a).”) (citation omitted); see also Marx v.
Centran Corp., 747 F.2d 1536, 1552 (6th Cir. 1984)
(noting that to certify a class in a meritless action would
“promote inefficiency for its own sake”);
Gilibeau v. City of Richmond, 417 F.2d 426, 432 (9th
Cir. 1969) (“[C]ompliance with Rule 23 is not to be
tested by a motion to dismiss for failure to state a
neither party moves for a Rule 23(c)(1) decision, “the
court has an independent obligation to decide whether an
action brought on a class basis is to be so
maintained.” 7AA Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1785 (3d ed.
2018). But, as the Seventh Circuit has noted, “there is
no fixed requirement that the court must always
defer a decision on a Rule 12(b)(6) motion until after the
court addresses class certification.” McReynolds v.
Merrill Lynch & Co., Inc., 694 F.3d 873, 879 n.4
(7th Cir. 2012) (emphasis in McReynolds). Although
“a Rule 12(b)(6) dismissal operates as a final decision
on the merits if leave to replead is not granted, it is
sometimes appropriate to decide a Rule 12(b)(6) motion ahead
of class certification.” Id. (citing
Twombly, 550 U.S. 544, 550 (2007) (affirming
dismissal of antitrust claims prior to ruling on class