United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
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.
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.
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.
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.
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
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.
STANDARD OF REVIEW
once again challenge Plaintiffs standing to bring this
[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.
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