Andre v. Customer Bank et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
ERNST ANDRE, 	)
)
Plaintiff, 	)
)
) 	Civil Action No. 25-CV-10477-AK
v. 	)
)
CUSTOMER BANK, SAM SIDHU, and 	)
PHILIP WATKINS 	)
)
Defendants. 	)
)
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS AND
PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT TO JOIN A PARTY
A. KELLEY, D.J.
Plaintiff Ernst Andre brings this action against Customers Bank (the “Bank”) and two of
its senior officers, Chief Executive Officer Samvir S. Sidhu and Chief Financial Officer Philip S.
Watkins (collectively, the “Individual Defendants,” and together with the Bank, the
“Defendants”), alleging violations of the Truth in Lending Act and common law fraud. [Dkt. 1].
The Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(2), 12(b)(5), and
12(b)(6) (the “Rules”), asserting lack of personal jurisdiction, improper service, and failure to
state a claim. [Dkt. 14]. Plaintiff moves for leave to amend his complaint to add Jude Datois as
a defendant. [Dkt. 17]. For the reasons that follow, Defendants’ Motion to Dismiss [Dkt. 14] is
GRANTED and Plaintiff’s Motion for Leave to Amend [Dkt. 17] is DENIED.
I. 	BACKGROUND
A. 	Factual Background
This action arises from a consumer loan identified by Plaintiff as Loan No. CB3521175
(the “Loan”), which originated on October 21, 2022. Plaintiff alleges that, after the Loan closed,
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he sent certified letters dated December 19, 2024 and January 21, 2025 requesting full loan
documentation (an accounting of loan terms, payment history, and origination records), which
the Bank did not provide. Plaintiff contends that the Bank’s alleged failure to disclose required
information violated the Truth in Lending Act (“TILA”) and that the Defendants’ conduct was
fraudulent and caused financial and emotional harm.
B. 	Procedural History
Plaintiff filed his pro se complaint on February 27, 2025. [Dkt. 1]. The Complaint
names the Bank as lender and identifies Sidhu and Watkins in their corporate capacities as CEO
and CFO, respectively. Count I alleges a TILA violation, Count II alleges fraud, and Count III
alleges negligent infliction of emotional distress. Plaintiff seeks compensatory and punitive
damages and injunctive relief requiring disclosure of loan documents.
On May 8, 2025, the Defendants filed a joint motion to dismiss on three principal
grounds: (1) lack of personal jurisdiction over the Individual Defendants, who are alleged to be
New York residents with no purposeful contacts with Massachusetts; (2) improper service of
process on the Individual Defendants; and (3) failure to state a claim. [Dkt. 14]. Defendants
argue, among other things, that TILA requires pre‑consummation disclosures and that Plaintiff
does not allege any pre‑closing nondisclosure, that any TILA claim is time‑barred by the
statute’s one‑year limitations period, that the federal criminal statutes invoked do not create a
private right of action, that Plaintiff’s fraud allegations fail to satisfy Rule 9(b), and that the
emotional distress claim fails under Massachusetts law for lack of duty and physical
manifestation. In support of their jurisdictional and service arguments, the Individual
Defendants submitted sworn declarations stating that they are New York residents, maintain
primary business addresses in New York, have not purposefully directed activities to
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Massachusetts, were not involved in the Loan transaction, and were not personally served at their
home addresses. [Dkt. 16]. Their declarations further state that the person who accepted service
on behalf of the Bank was not authorized to accept service on their behalf. Id. Plaintiff opposes
dismissal and contends that service was proper under Rule 4(h). [Dkts. 19, 20].
On May 27, 2025, Plaintiff moved for leave to amend to add Jude Datois, alleging that
Datois procured the Loan, submitted the application and supporting documentation to the Bank,
and acted on Plaintiff’s behalf. [Dkt. 17]. Defendants oppose amendment to the extent it would
delay resolution of their motion to dismiss, contend they are unfamiliar with Datois, and assert
that the proposed amendment does not cure the jurisdictional and service defects they have
identified. [Dkt. 18]. Plaintiff maintains that amendment is timely, will promote judicial
economy, and is unrelated to the service dispute. [Dkts. 19, 20].
II. 	LEGAL STANDARDS
A. Rule 12(b)(2) — Lack of Personal Jurisdiction
A defendant may move to dismiss for lack of personal jurisdiction under Rule
12(b)(2). The plaintiff bears the burden of establishing that the court has jurisdiction over the
defendant. A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016). When the court
resolves the motion based on written submissions without an evidentiary hearing, the plaintiff
need only make a prima facie showing of jurisdiction, and the court construes the pleadings and
affidavits in the plaintiff’s favor. Peterson v. Burke, 433 F. Supp. 3d 212, 217 (D. Mass. 2020);
A Corp., 812 F.3d at 58.
Jurisdictional analysis proceeds in two steps: the court first determines whether the
forum’s long‑arm statute authorizes jurisdiction, and then asks whether the exercise of
jurisdiction comports with due process by assessing whether the defendant has sufficient
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“minimum contacts” with the forum such that jurisdiction would comport with “traditional
notions of fair play and substantial justice.” Boit v. Gar‑Tec Prods., Inc., 967 F.2d 671, 675-76
(1st Cir. 1992); Int’l Shoe Co. v. Washington, 326 U.S. 310, 316-20 (1945). The Supreme Court
has further refined the due process inquiry by addressing purposeful availment, the relationship
between the defendant’s forum contacts and the claim (specific versus general jurisdiction), and
the limits on exercising general jurisdiction over foreign corporate officers. Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 472-76 (1985); Daimler AG v. Bauman, 571 U.S. 117, 126-27
(2014).
B. Rule 12(b)(5) — Insufficient Service of Process
A defendant may move to dismiss under Rule 12(b)(5) where service of process is
challenged as insufficient. The plaintiff bears the burden of proving that service was properly
affected. Ceinorius v. Franco, 627 F. Supp. 3d 51, 53 (D. Mass. 2022). If the plaintiff cannot
demonstrate valid service, dismissal is appropriate unless the defect is cured or excused. Fed. R.
Civ. P. 4(h)(1)(B); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48
(1999). Service on a corporation or its officers must comply with the methods authorized by the
Federal Rules and applicable state law, and courts look to the return of service and supporting
affidavits to determine whether service was effective. Fed. R. Civ. P. 4(h)(1)(B); Lopez v.
Orange Lantern, Inc., 792 F. Supp. 3d 202, 207–08 (D. Mass. 2025).
C. Rule 12(b)(6) — Failure to State a Claim
Under Rule 12(b)(6), a complaint must be dismissed if it fails to plead “a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court
accepts well‑pleaded factual allegations as true and draws all reasonable inferences in the
plaintiff’s favor, but it need not credit legal conclusions or “threadbare recitals” of the elements
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of a cause of action. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). To survive dismissal, the
complaint must contain sufficient factual matter to permit the court to infer more than the mere
possibility of misconduct. Twombly, 550 U.S. at 555-57; Iqbal, 556 U.S. at 678-79; Butler, 736
F.3d at 612-13.
III. 	DISCUSSION
Jurisdictional and service questions are threshold matters that the Court must resolve
before reaching the merits. Defendants move to dismiss under Rules 12(b)(2) and 12(b)(5) for
lack of personal jurisdiction and insufficient service, and under Rule 12(b)(6) for failure to state
a claim. Plaintiff opposes dismissal and seeks leave to amend to add a third‑party
defendant. The Court addresses personal jurisdiction and service first, then considers the
sufficiency of the pleaded claims and the motion to amend.
A. 	Personal Jurisdiction - Rule 12(b)(2)
When a court resolves a Rule 12(b)(2) motion on written submissions, the plaintiff must
make a prima facie showing of jurisdiction, and the court construes the pleadings and affidavits
in the plaintiff’s favor. A Corp., 812 F.3d at 58; Peterson, 433 F. Supp. 3d at 217. The
jurisdictional inquiry asks whether the forum’s long‑arm statute authorizes jurisdiction and
whether the exercise of jurisdiction comports with due process by assessing whether the
defendant has sufficient “minimum contacts” with the forum so that maintenance of the suit does
not offend “traditional notions of fair play and substantial justice.” Int’l Shoe, 326 U.S. at 316-
20; Burger King, 471 U.S. at 472-76. The Supreme Court’s decisions in Daimler and Burger
King further clarify that specific jurisdiction requires a demonstrable nexus between the
defendant’s forum contacts and the plaintiff’s cause of action, and that mere corporate affiliation
is generally insufficient to subject corporate officers to suit in their individual
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capacities. Daimler, 571 U.S. at 126–27; Boit, 967 F.2d at 675–76.
Applying these principles, Plaintiff has not made the requisite prima facie showing of
specific jurisdiction over the Individual Defendants. The Complaint contains no factual
allegations tying either Sidhu or Watkins personally to Massachusetts or to the Loan
transaction. Instead, it alleges only that they are senior officers of the Bank. The Individual
Defendants have submitted sworn declarations stating that they reside and work in New York,
have not purposefully directed relevant activities to Massachusetts, were not involved in the
Loan transaction, and were not personally served in Massachusetts. [Dkt. 16]. Construing the
limited record in Plaintiff’s favor does not bridge the gap between corporate activity and
individual liability: the Bank’s business in Massachusetts does not, without more, establish that
its CEO or CFO purposefully availed themselves of the forum with respect to this
transaction. Daimler, 571 U.S. at 127-28; Boit, 967 F.2d at 675-76. Because Plaintiff has not
alleged facts showing a nexus between the Individual Defendants’ contacts and the claims, the
Court lacks personal jurisdiction over Sidhu and Watkins and the claims against them must be
dismissed on that ground.
B. 	Service of Process - Rule 12(b)(5)
The plaintiff bears the burden of proving that service of process was properly
affected. Lopez, 792 F. Supp. 3d at 208. Rule 4(h) authorizes service on a corporation by
delivering a copy of the summons and complaint to an officer, managing or general agent, or
other authorized agent, or by following the methods for serving an individual under Rule
4(e). Fed. R. Civ. P. 4(h)(1); Fed. R. Civ. P. 4(e). Service on a corporate agent does not
automatically affect service on individual officers in their personal capacities unless the agent is
authorized to accept service for those individuals; courts examine the return of service and
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supporting affidavits to determine whether service was effective. Murphy Bros., 526 U.S. at
347-48; Fed. R. Civ. P. 4.
Here, the proof of service shows that process was delivered at the Bank’s corporate
address and accepted by a bank representative. That method may suffice to serve the corporate
defendant, but it does not, without additional evidence, constitute valid service on Sidhu and
Watkins in their individual capacities under Rule 4(e). The Individual Defendants have
submitted sworn statements denying that the person who accepted service was authorized to
accept service on their behalf and asserting they were not personally served at their residences or
usual places of abode. [Dkt. 16]. Plaintiff has not produced evidence that the bank
representative was authorized to accept service for the Individual Defendants or that any
alternative means authorized by Rule 4(e) were employed. Because Plaintiff has not met his
burden to show valid service on the Individual Defendants in their personal capacities, dismissal
of the claims against them for insufficient service is appropriate unless the defect is cured; the
record contains no such cure. Although courts sometimes decline to dismiss where defendants
have actual notice and suffer no prejudice, Plaintiff has not attempted to cure the service defect
in the months since filing, and the Court will not permit procedural irregularities to stand where
the record affirmatively shows defective service. Accordingly, the claims against Sidhu and
Watkins are dismissed without prejudice for lack of personal jurisdiction and for insufficient
service of process.
C. 	Failure to State a Claim - Rule 12(b)(6)
Because the Court dismisses the Individual Defendants on jurisdictional and service
grounds, it addresses the merits only as to the Bank to determine whether the Complaint states
plausible claims.
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1. Violation of Truth in Lending Act (TILA)
TILA provides a private right of action for certain disclosure violations, but claims for
damages under 15 U.S.C. § 1640(e) must be brought within one year of the occurrence of the
violation, and courts commonly treat the date of the loan closing (when disclosures are due) as
the accrual date for nondisclosure claims. Rodrigues v. Members Mortg. Co., 323 F. Supp. 2d
202, 210 (D. Mass. 2004). The Loan here was consummated in 2022 and Plaintiff’s certified
demand letters were sent in December 2024 and January 2025. Plaintiff filed suit in February
2025. The Complaint does not allege facts supporting a later accrual date or equitable
tolling. Accordingly, the TILA claim is time‑barred and must be dismissed.
2.Fraud and Federal Criminal Statutes
Plaintiff invokes federal criminal statutes (18 U.S.C. §§ 1001, 1014) and alleges
fraud. Criminal statutes generally do not create private civil causes of action. Cok v. Cosentino,
876 F.2d 1, 2 (1st Cir. 1989). Separate and apart from that threshold defect, Plaintiff’s fraud
allegations are conclusory and fail to satisfy the particularity requirement of Rule 9(b). The
Complaint does not identify who made specific false statements, when and where they were
made, or how they induced Plaintiff to act. Because the Complaint fails to plead fraud with the
required specificity and the cited criminal statutes do not furnish a private remedy, the fraud
claims must be dismissed.
3.Negligent Infliction of Emotional Distress (“NIED”)
Under Massachusetts law, an NIED claim requires proof of negligence, causation,
objective symptomatology demonstrating a physical manifestation of harm, and that a reasonable
person would have suffered the alleged distress under the circumstances. Payton v. Abbott Labs,
386 Mass. 540, 548-49 (1982); Sullivan v. Boston Gas Co., 414 Mass. 129, 137-38 (1993). The
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Complaint contains only generalized allegations of stress and uncertainty and does not plead
objective physical manifestations or other facts sufficient to satisfy the NIED
elements. Accordingly, the NIED claim fails. For these reasons, the Complaint does not state
plausible claims against the Bank and must be dismissed with prejudice as to the Bank.
D. Motion for Leave to Amend – Rule 15
Plaintiff seeks leave to amend to add Jude Datois, whom he alleges procured the Loan
and acted on his behalf. Leave to amend should be freely given absent undue delay, bad faith,
undue prejudice, or futility. Foman v. Davis, 371 U.S. 178, 182 (1962). An amendment is futile
if the proposed amended complaint would not survive a Rule 12(b)(6) motion. Glassman v.
Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996).
Even assuming the Court were to permit amendment, the proposed claims against Datois
would be futile for the reasons already stated. The TILA claim remains time‑barred unless
Plaintiff plausibly alleges a later accrual date or facts supporting equitable tolling; the proposed
amendment does not do so. Datois is not alleged to be a creditor as defined by TILA (i.e., the
person to whom the debt is initially payable and who regularly extends consumer credit), and the
amended allegations do not supply facts necessary to treat him as such. The fraud claims against
Datois suffer from the same Rule 9(b) deficiencies, and the criminal statutes invoked do not
create private causes of action. The NIED allegations remain conclusory and lack objective
symptomatology. Because the proposed amendment would not cure these substantive defects,
the Court concludes amendment would be futile and denies leave to amend on that basis.
IV. 	CONCLUSION AND ORDER
For the foregoing reasons, it is hereby ORDERED that:
1. 	Defendants’ Motion to Dismiss [Dkt. 14] is GRANTED. The claims against
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Individual Defendants Samvir S. Sidhu and Philip S. Watkins are DISMISSED
without prejudice for lack of personal jurisdiction and for insufficient service of
process. The claims against Customers Bank are DISMISSED with prejudice for
failure to state a claim.
2. 	Plaintiff’s Motion for Leave to Amend [Dkt. 17] is DENIED as futile.
The Clerk shall enter judgment accordingly and close the case.
SO ORDERED.
Dated: January 23, 2026 	/s/ Angel Kelley
Hon. Angel Kelley
United States District Judge
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