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Kamal v. J. Crew Group, Inc.

United States District Court, D. New Jersey

June 13, 2017

AHMED KAMAL, Plaintiff,
J. CREW GROUP, INC., et al., Defendants.


          WILLIAM J. MARTINI, U.S.D.J.

         Plaintiff 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.

         I. BACKGROUND

         The 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).

         Plaintiff 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.

         Procedural History before this Court

         Plaintiff 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.[1]

         Plaintiff 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 now decides.[2]


         Federal 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 omitted).


         The 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.

         A. Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016)

         The 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, ...

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