Blackburn v. Mutual Savings Credit Union

Filing 37

MEMORANDUM OPINION AND ORDER that Defendant's 33 MOTION to Dismiss for Lack of Standing is DENIED. Signed by Hon. Chief Judge Mark E. Fuller on 5/11/2011. (Attachments: # 1 Civil Appeals Checklist)(cc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BRITANI LAINE BLACKBURN,
Plaintiff,
v.
FEDCORP, INC.,
Defendant.

)
)
)
)
)
)
)
)

CASE NO. 2:10-cv-726-MEF

(WO - Do Not Publish)

MEMORANDUM OPINION AND ORDER
Britani Laine Blackburn ("Blackburn") alleges violations of the Electronic Fund
Transfer Act ("EFTA"), 15 U.S.C. § 1693 et seq., and its implementing regulation E, 12
C.F.R. § 205.1 et seq. Specifically, Blackburn alleges that Defendant failed to post the
automated teller machine ("ATM") fee notices required. Blackburn brings this action on her
own behalf, but also purports to represent a class of similarly situated persons. This cause
is before the Court on Defendant's Motion to Dismiss for Lack of Standing (Doc. #33) filed
on March 9, 2011. By this motion, Defendant FEDCorp, Inc. ("FEDCorp") argues that its
Offer of Judgment to Blackburn for all that she is legally entitled to recover rendered her
claim moot and deprived her of standing to bring the action on behalf of a purported class.
Blackburn opposes the motion. For the reasons set forth below, the Court finds that the
motion is due to be DENIED.
BACKGROUND
The EFTA requires ATM operators to provide customers with notice of any fees to
be imposed on their ATM transactions and prohibits ATM operators from imposing fees in

connection with transactions that fail to comply with its notice requirement. See 15 U.S.C.
§§ 1693b(d)(3)(C) & (D). The EFTA provides that any person who fails to comply with its
provisions with respect to any consumer, except through error, is liable to the consumer for
any actual damage sustained, statutory damages, costs, and a reasonable attorney's fee as
determined by the Court. See 15 U.S.C. § 1693m(a). The amount recoverable as statutory
damages in an individual action is at least $100, but not more than $1,000. In a class action,
the minimum amount of damages allowable is not fixed, but the total recovery is capped at
the no more than the lesser of $500,000 or 1 per centum of the net worth of the defendant.
See 15 U.S.C. § 1693m(a)(2)(A) & (B). The EFTA fixes subject matter jurisdiction over
actions under the statute in any United States District Court or in any court of competent
jurisdiction and imposes a one year statute of limitations on such actions.
In June of 2010, Blackburn, who lives in Montgomery County, Alabama, used an
ATM FEDCorp owned and operated in Clanton, Alabama. Blackburn did not have an
account with FEDCorp at the time she used its ATM. FEDCorp charged Blackburn a $2.50
surcharge fee for using its ATM to withdraw cash from her account with another financial
institution. FEDCorp failed to post on or at the ATM a notice that a fee will be imposed for
withdrawing cash or for a balance inquiry.
On August 27, 2010, Blackburn filed this class action seeking statutory damages,
injunctive relief, costs, and a reasonable attorney's fee on behalf of herself and other persons
similarly situated. On October 15, 2010, she filed an Amended Complaint correcting the
identity of the defendant. Blackburn has not yet filed a motion seeking certification of the
2

case as a class action.
In January of 2011, FEDCorp served an Offer of Judgment on Blackburn pursuant to
Federal Rule of Civil Procedure 68. FEDCorp offered Blackburn $1,000 plus reasonable
attorney's fees and costs. Blackburn did not respond to the Offer of Judgment.
On March 9, 2011, FEDCorp filed its Motion to Dismiss for Lack of Standing (Doc.
# 33). In this motion, it argues that Blackburn's claim is now moot and that she lacks
standing to bring this action on behalf of the putative class. FEDCorp seeks dismissal of all
claims with prejudice. Blackburn opposes this motion. She contends that an offer of
judgment providing individual relief only does not moot a case brought as a class action and
that the offer of judgment does not moot Blackburn's request for injunctive relief.
DISCUSSION
Where as here, a defendant brings a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(1), the motion addresses the court's subject matter jurisdiction to hear
the case. Such a motion is made either as a facial attack or as a factual attack. Stalley v.
Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1233 (11th Cir. 2008). A facial attack
on the complaint asks the court merely to look and see if the plaintiff has sufficiently alleged
a basis for subject matter jurisdiction. Id. A factual attack challenges the actual existence
of subject mater jurisdiction using extrinsic material. Id.
One variant of the factual attack on subject matter jurisdiction is a motion predicated
on a contention that the complaint is due to be dismissed because it has become moot. Sheely
v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 (11th Cir. 2007). Federal court
3

jurisdiction is constitutionally limited to actual cases and controversies. See, e.g., Crown
Media, LLC v. Gwinnett County, Ga., 380 F.3d 1317, 1324 (11th Cir. 2004) (The
Constitution limits the jurisdiction of the federal courts to actual cases and controversies.);
Troiano v. Supervisor of Elections in Palm Beach City, 382 F.3d 1276, 1281 (11th Cir. 2004)
("A moot case is nonjusticiable and Article III courts lack jurisdiction to entertain it.").
When a complaint no longer presents a live controversy with respect to which the court can
give meaningful relief or when the plaintiff loses a legally cognizable interest in the outcome
of the case, a case is moot. See, e.g., Powell v. McCormack, 395 U.S. 486, 496 (1969)
("Simply stated, a case is moot when the issued presented are no longer 'live' or the parties
lack a legally cognizable interest in the outcome."); Al Najjar v. Ashcroft, 273 F.3d 1330,
1336-37 (11th Cir. 2001); Taylor v. XM Satellite Radio, Inc., 533 F. Supp. 2d 1151, 1153
(N.D. Ala. 2007) ("For a case to properly fall within Article III, both litigants must have a
personal interest in the case at the beginning of the litigation, and their interests must persist
throughout the entirety of the litigation.").
Rendering a decision in a moot case is the equivalent to rendering an advisory opinion
which is outside of the jurisdiction of Article III courts. Friends of the Everglades v. S. Fla.
Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009), cert. denied, 131 S. Ct. 645
(2010). Thus, a court is required to dismiss a moot action for want of jurisdiction. Seay
Outdoor Advertising, Inc. v. City of Mary Esther, 397 F.3d 943, 946 (11th Cir. 2005). A
dismissal for lack of standing or mootness is not a judgment on the merits and is without
prejudice. Stalley, 524 F.3d at 1232; State v. Centers for Medicare & Medicaid Servs.,
4

2:08cv881-MEF, 2010 WL 1268090 at *9 n.7 (M.D. Ala. Mar. 30, 2010).
In support of its motion to dismiss, FEDCorp contends that Blackburn's claim is moot
because it has offered her judgment in her favor for all the relief to which she would ever be
entitled.1 Blackburn disputes this assertion and contends that the Offer of Judgment did not
offer her complete relief because (1) she also seeks injunctive relief and (2) the fact that this
suit involves a putative class action means that an Offer of Judgment to her as an individual
plaintiff does not moot the case.
Injunctive Relief Under the EFTA
The EFTA provides a comprehensive statutory scheme of remedies which do not
include injunctive relief. FEDCorp correctly contends that nowhere in either 15 U.S.C. §
1693 et seq. or 12 C.F.R.§ 205 et seq. is there any mention of the availability of equitable
relief. While Blackburn asserts an entitlement to injunctive relief both in her pleadings and
in her brief in opposition to the motion, she fails to point to any legal authority for the
existence of such relief under the EFTA. The fact that Congress has expressly provided a

1

It is undisputed that Blackburn has not accepted the Offer of Judgment. By
operation of Federal Rule of Civil Procedure 68(b), the unaccepted offer must be considered
withdrawn. Furthermore, evidence of an unaccepted offer is not admissible except to
determine costs. As a technical matter then, the Court is not at all convinced that FEDCorp
should be allowed to make arguments in this motion predicated on evidence of the
unaccepted offer. Indeed, at least one court faced with circumstances identical to the ones
before this Court has opined that the motion to dismiss based on mootness must be denied
because the case was not settled as to all claims. See Harter v. Beach Oil Co., Inc., No. 3:100968, 2011 WL 1458726 *1 (M.D. Tenn. Apr. 15, 2011). Of course, Blackburn has not
advanced this argument as a reason for denying the current motion. This Court will rest is
decision on the basis of the arguments made.
5

statutory scheme of remedies which does not mention other remedies requires this Court to
apply the interpretive cannon of expressio unis est exclusio alterius. See Christ v. Beneficial
Corp., 547 F.3d 1292, 1298 (11th Cir. 2008) (explaining this elementary rule of statutory
construction by which the fact that a statute expressly provides a particular remedy or
remedies prevents a court from reading the statute to provide other remedies not listed in the
statute). See also Garland v. Wal-Mart Stores, Inc., Civ. 09-1067-STA-egb, 2009 WL
3241701 at *2 (W.D. Tenn. Sept. 30, 2009) (holding that EFTA does not provide for
injunctive relief). Because no injunctive relief is available under the EFTA, the Court cannot
find that the Offer of Judgment was incomplete because it did not offer such relief.
Putative Class Action Status
Next Blackburn argues that the Offer of Judgment did not offer her complete relief
and moot her claims under the EFTA because it only offered her the maximum relief
available to an individual and not the maximum relief available to a class. In so arguing,
Blackburn relies on an unpublished decision from the United States District Court for the
Southern District of Florida. See Capote v. United Collection Bureau, Inc., No. 09-61834CIV, 2010 WL 966859 at *1 (S.D. Fla. Mar. 12, 2010) (denying a motion to dismiss on
mootness grounds. FEDCorp invokes a variety of cases in support of their motion. After
establishing general principles regarding mootness and jurisdiction, FEDCorp identifies a
number of cases in which district courts in the Eleventh Circuit have held that a proper offer
of judgment for full and complete relief render's a plaintiff's claim moot. Of course, those
cases beg the question is the offer in this case one for full and complete relief when it offers
6

only the relief to which Blackburn would be entitled as an individual and not the great relief
available after class certification.
Through its own research the Court has identified a number of cases more salient to
the issue before it. First, there are a series of unpublished decisions from the United States
District Court for the Northern District of Illinois. Stilz v. Standard Bank & Trust Co., No.
10 C 1996, 2010 WL 5158108 *1 (N.D. Ill. Dec. 14, 2010); Stilz v. Banco Popular N. Am.,
No. 10 C 2087, 2010 WL 4338446 (N.D. Ill. Oct. 25, 2010); Stilz v. Global Cash Network,
Inc., No. 10CV 1998, 2010 WL 3975588 *1 (N.D. Ill. Oct. 7, 2010). These cases are brought
for relief under the EFTA by an individual who had used an improperly marked ATM and
who alleged his claims as a representative of a putative class. Id. Each time the court
rejected the plaintiff's contention that the fact that he was seeking to represent a putative class
of victims meant that the offer of judgment for the amount to which he was entitled as an
individual could not moot his claims. Id. Even these cases, however, acknowledge the
struggle which courts have had with the concept of mootness when a plaintiff seeks to
represent a putative class. Id.
In addition to these EFTA cases described above, the Courts own research identified
two decisions from Circuit Courts of Appeals2 which address the mootness question in the
context of the Fair Debt Collection Practices Act ("FDCPA"). See, Lucero v. Bureau of

2

It does not appear that the Court of Appeals for the Eleventh Circuit has addressed
this issue.
7

Collection Recover, Inc., No 10-2122, 2011 WL 1184168 *1, *10 (10th Cir. Mar. 31, 2011)3
(holding that a named plaintiff in a proposed class action for monetary relief may proceed
to seek timely class certification where an unaccepted offer of judgment is tendered in
satisfaction of the plaintiff's individual claim before the court can reasonably be expected to
rule on class certification); Weiss v. Regal Collections, 385 F.3d 337 (3rd Cir. 2004)
(reversing decision of district court to dismiss claims as moot where plaintiff did not accept
an offer of judgment for the maximum amount recoverable as an individual, but did not
provide the maximum relief allowable to a class). The Court finds the reasoning of Lucero
and Weiss persuasive and the relevant statutory provisions of the EFTA and the FDCPA
similar in all material respects. Accordingly, for the reasons stated in Lucero and Weiss, the
Court finds that Blackburn's claims are not moot because the offer of judgment made to her
did not provide the maximum damages to the putative claims.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the Motion to Dismiss for Lack
of Standing (Doc. # 33) is DENIED.
th

DONE this the 11 day of May, 2011.

/s/ Mark E. Fuller
CHIEF UNITED STATES DISTRICT JUDGE

3

This case will be published in the Federal Reporter.
8