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Kamal v. J. Crew Group, Inc.

United States District Court, D. New Jersey

September 10, 2019

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

          OPINION

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

         Plaintiff Ahmed Kamal ("Plaintiff) brings this putative class action against the J. Crew Group, Inc. and various related entities ("Defendants") under the Fair and Accurate Credit Transactions Act of 2003 ("FACTA"). This matter comes before the Court on Defendants' motion to dismiss Plaintiffs Third Amended Complaint ("TAC") without leave to amend. ECF No. 107 ("Motion"). For the reasons set forth below, the Motion is GRANTED.

         I. BACKGROUND

         Despite lengthy litigation, the facts of this case are relatively simple. FACTA mandates 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 or the expiration date upon any receipt." 41 U.S.C. § 1681c(g)(1). Plaintiff alleges that despite that prohibition, Defendants issued him three receipts displaying the first six and last four digits of his credit card number for his Discover-branded card ("Receipts"). TAC ¶¶ 2, 105, 107, 109, ECF No. 103.

         II. PROCEDURAL HISTORY

         Within weeks of receiving the offending Receipts, Plaintiff filed suit. After Plaintiff amended his complaint, the Court denied Defendants' attempt to dismiss under Federal Rule of Civil Procedure ("FRCP") 12(b)(6). Aug. 6, 2015 Op. & Ord., ECF Nos. 32-33. On May 16, 2016, the Supreme Court issued its opinion in Spokeo, Inc. v. Robins, finding that "standing requires a concrete injury even in the context of a statutory violation." Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1549 (2016). Defendants moved to dismiss under Spokeo pursuant to FRCP 12(b)(1). ECF No. 50. The Court granted the motion and dismissed the Amended Complaint without prejudice. Oct. 20, 2016 Op. & Ord., ECF Nos. 63-64.

         In November 2016, Plaintiff filed their Second Amended Complaint ("SAC"). ECF No. 65. Defendants once again moved to dismiss under FRCP 12(b)(1). ECF No. 68. The Court granted the motion, dismissing the SAC without prejudice. June 6, 2016 Op. & Ord., ECF Nos. 84-85. Plaintiff moved for reconsideration or, alternatively, requested that the Court amend its Opinion and Order to dismiss with prejudice to permit an appeal. ECF No. 87. The Court denied the motion for reconsideration, but amended its Opinion and Order to dismiss with prejudice. Amend. June 14, 2016 Op. & Ord., ECF No. 88-89 ("Kamal I”). Plaintiff appealed.

         The Third Circuit affirmed this Court's opinion that Plaintiff lacked standing. Kamal v. J. Crew Grp., Inc., 918 F.3d 102, 106 (3d Cir. 2019) ("Kamal I”). The court also found, however, that this Court lacked authority to dismiss the case with prejudice. Id. at 118. Therefore, it remanded for dismissal without prejudice. Id. This Court did so on April 15, 2019. Ord., ECF No. 97. Plaintiff filed the TAC on May 14, 2019.

         III. NEW ALLEGATIONS

         The TAC is largely identical to the SAC. Almost all the new or amended allegations are conclusory statements of law or congressional intent, not facts regarding an alleged injury. See generally TAC ¶¶ 3, 5-7, 27, 58, 60-62, 111-18 (edited paragraphs). New factual allegations from which the Court could infer a concrete injury are limited to: (1) a study regarding illicit use of the first six digits of a credit card number, id. ¶ 5; (2) that the fifth and sixth digits printed on the Receipts show more than the card brand and help hackers determine card zip codes, id.; (3) that Plaintiff incurred costs associated with legal representation, id. ¶ 114; (4) that Plaintiff expected his credit card number to remain secret, but Defendants created a risk that the information would fall into a third party's hands by printing more digits than FACTA permits, id. ¶¶ 116-117, and (5) that Plaintiff could no longer merely throw out the Receipts, and instead must incur the cost of safely keeping or destroying them, id. ¶ 6, 111-13, 115.

         IV. STANDARD OF REVIEW

         Defendants once again challenge Plaintiffs standing to bring this lawsuit.

[FRCP] 12(b)(1) is the proper vehicle for challenging a plaintiffs Article III standing. Challenges to standing are either "facial" or "factual." [A facial challenge] does not dispute what facts are, but rather whether the facts as plead create standing. In such cases, a presumptive truthfulness attaches to the plaintiffs allegations .... Nonetheless, plaintiffs always bear the burden of establishing subject matter jurisdiction. 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.

Kamal I at 3 (cleaned up). As before, Defendants' challenge here is facial. See Mot.

         V. DISCUSSION

         Defendants challenge Plaintiffs standing. Because the requirements of standing were discussed in detail in Kamal II, the Court will not do so again here. In short, Article III standing requires plaintiffs to have "suffered an injury in fact." Spokeo, 136 S.Ct. at 1547. "To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical." Id. at 1548 (cleaned up). "Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its ...


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