United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
Ahmed Kamal brings this putative class action suit for
alleged violations of the Fair and Accurate Credit
Transactions Act amendment to the Fair Credit Reporting Act,
15 U.S.C. § 1681, et seq. This matter comes
before the Court on Defendants' motion to dismiss
Plaintiff's Second Amended Complaint for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). There was no oral argument. See Fed. R.
Civ. P. 78(b). For the reasons set forth below, the motion to
dismiss is GRANTED. Plaintiff's Second Amended Complaint
is DISMISSED with prejudice.
Fair and Accurate Credit Transactions Act
(“FACTA”) states that “no person that
accepts credit cards or debit cards for the transaction of
business shall print more than the last 5 digits of the card
number . . . upon any receipt provided to the cardholder at
the point of the sale or transaction.” 15 U.S.C.A.
§ 1681c. The statute creates a private cause of action
for “any actual damages . . . or damages of not less
than $100 and not more than $1, 000” for each
violation. 15 U.S.C. § 1681n(a).
Ahmed Kamal alleges that on three occasions Defendants, a
conglomerate of clothing stores and manufacturers comprising
J. Crew (“J. Crew” or “Defendants”),
printed the first six and last four digits of Plaintiff's
credit card number on transaction receipts. Second Amended
Complaint (“SAC”) ¶ 2. Plaintiff purports to
bring this action “on behalf of all persons or entities
to whom Defendants provided an electronically printed receipt
at the point of sale or transaction . . . which receipt
displayed more than the last five digits of the
customer's credit card number.” SAC ¶ 20.
History before this Court
filed his single-count FACTA Complaint on January 10, 2015,
and his First Amended Complaint (“FAC”) on March
25, 2015. He seeks statutory damages of $100 to $1000 per
violation along with attorneys' fees and punitive
damages. On August 6, 2015, the Court denied Defendants'
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), finding that Plaintiff adequately stated a claim
for willful violation of FACTA's credit-card number
truncation provision. ECF No. 33. See 15 U.S.C.
§ 1681, et seq. The Court granted J. Crew's
motion to stay the case in December 2015 pending the Supreme
Court's decision regarding constitutional standing in
Spokeo Inc. v. Robins, 136 S.Ct. 1540 (2016). On May
16, 2016, the Supreme Court held that a plaintiff does not
automatically “satisf[y] the injury-in-fact requirement
whenever a statute grants a person a statutory right and
purports to authorize that person to sue to vindicate that
right.” Spokeo, 136 S.Ct. at 1549. Applying
Spokeo, this Court determined that it lacked subject
matter jurisdiction and dismissed Kamal's FAC without
prejudice. Most federal courts faced with similar FACTA
complaints have agreed that a violation of the credit-card
truncation provision does not automatically confer Article
III standing under Spokeo.
filed the SAC on November 17, 2016. ECF No. 65. Defendants
again moved to dismiss for lack of standing. On January 20,
2017, as this motion was pending, the Third Circuit decided
In re Horizon Healthcare Servs. Data Breach Litig.,
846 F.3d 625 (3d Cir. 2017) (hereinafter
“Horizon”), which applied
Spokeo in the context of an alleged data breach that
led to the disclosure of the plaintiff's personal
information. At the parties' request, this Court allowed
for a short supplementary briefing schedule. Meanwhile, J.
Crew moved without opposition to consolidate this case with
Parker v. J. Crew Group, Inc., ,
(“Parker”), a case originally filed in Illinois
state court and then removed to the Northern District of
Illinois. On February 21, 2017, the Northern District of
Illinois transferred the case to the District of New Jersey
pursuant to 28 U.S.C. § 1404(a) (providing transfer
“for the convenience of the parties and witnesses, in
the interests of justice . . ..”); Order of Judge
Samuel Der-Yeghiayan, ECF No. 75, Ex. B. This case and
Parker involve virtually identical facts. Magistrate
Judge Mark Falk granted the unopposed motion to consolidate
on May 1, 2017. On May 5, 2017, after a telephone conference
with the parties, Judge Falk temporarily stayed
Parker pending this Court's decision on J.
Crew's motion to dismiss Kamal's SAC, which the Court
Rule of Civil Procedure 12(b)(1) is the proper vehicle for
challenging a plaintiff's Article III standing.
Fed.R.Civ.P. 12(b)(1). See Society Hill Towers
Owners' Ass'n v. Rendell, 210 F.3d 168, 175 (3d
Cir. 2000); Reilly v. Ceridian Corp., 664 F.3d 38,
41 (3d Cir. 2011) (citations omitted). Challenges to standing
are either “facial” or “factual.”
Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir.
2016). J. Crew's challenge is facial, in that it does not
dispute what facts are, but rather whether the facts as
plead create standing. In such cases, a
“presumptive truthfulness attaches to the
plaintiff's allegations, ” as would be the case in
a 12(b)(6) setting. Horizon, 846 F.3d at 633,
(citing Davis v. Wells Fargo, 824 F.3d 333, 346 (3d
Cir. 2016)). Nonetheless, plaintiffs always bear the burden
of establishing subject matter jurisdiction. Spokeo, Inc.
v. Robins, 136 S.Ct. 1540 (2016). Animal Sci. Prod.,
Inc. v. China Minmetals Corp., 654 F.3d 462, 470 (3d
Cir. 2011). “Although ‘general factual
allegations of injury resulting from the defendant's
conduct may suffice, ' the complaint must still
‘clearly and specifically set forth facts sufficient to
satisfy' Article III.” Reilly v. Ceridian
Corp., 664 F.3d 38, 41 (3d Cir. 2011)(citations
Constitution limits the subject matter jurisdiction of
federal courts to “cases” and
“controversies.” See U.S. Art. III
§ 2. To establish constitutional standing, plaintiffs
must, inter alia, “clearly . . . allege facts
demonstrating” an “injury in fact.”
Lujan v. Defs. Of Wildlife, 504 U.S. 555, 561
(1992). An “injury in fact” is “an invasion
of a legally protected interest which is concrete and
particularized.” Id. at 560 (citations
omitted). The issue in this case is whether Kamal alleges a
sufficiently “concrete” harm to confer standing.
The Court will briefly summarize two recent, governing cases
on the issue of concreteness, Spokeo and
Horizon. Applying this case law, the Court finds
that Kamal fails to clearly allege facts demonstrating that
he has sustained a concrete injury in fact.
Spokeo, Inc. v. Robins, 136 S.Ct. 1540
Supreme Court in Spokeo v. Robbins clarified that an
“injury in fact” must be “concrete, ”
which means “it must actually exist.” Spokeo
Inc. v. Robins, 136 S.Ct. 1540, 1548 (2016) ((citing
Black's Law Dictionary 479 (9th ed. 2009)).
“Concrete” injuries may be
“intangible” or non-economic, but, like other
cognizable injuries, they must be “actual or imminent,
not conjectural or hypothetical.” Spokeo, 136
S.Ct. at 1548. Spokeo provided two factors that
determine whether an intangible harm is sufficiently
concrete. Id. at 1549. The first is “whether
an alleged intangible harm has a close relationship to a harm
that has traditionally been regarded as providing a basis for
a lawsuit in English or American courts.” Id.
If so, “it is likely to be sufficient to satisfy the
injury-in-fact element of standing.” Horizon,
846 F.3d at 637 (3d Cir. 2017). The second consideration is
“whether Congress has expressed an intent to make an
injury redressable;” for, “even if an injury was
previously inadequate in law, Congress may elevate it to the
status of [a] legally cognizable injur[y].”
Id. (quoting Spokeo, 846 F.3d at 637)
(internal citations omitted). Still, ...