Colby v. Publix Super Markets Inc
MEMORANDUM OPINION AND ORDER -This case is before the court on Pltf Martin A. Colby's Motion for Class Certification 17 . This court concludes that the Supreme Court's decision in First Am. Fin. Corp. v. Edwards may affect the outcome of this matter. This action is STAYED until the Supreme Court's decision in Edwards. Pltf's Motion 17 and Dft's Motion to Strike Pltf's Declaration in Support of his Motion for Class Certification 21 are ADMINISTRATIVELY TERMIN ATED. Within fourteen (14) days of any decision being released in Edwards, the parties SHALL provide this court with a copy of the Court's decision and a joint report stating their respective positions about that decision's effect on this case. Signed by Judge R David Proctor on 6/15/2012. (AVC)
2012 Jun-15 AM 09:30
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MARTIN A. COLBY, individually and
on behalf of all others similarly
PUBLIX SUPER MARKETS, INC.,
Case No.: 2:11-CV-590-RDP
MEMORANDUM OPINION AND ORDER
This case is before the court on Plaintiff Martin A. Colby’s Motion for Class Certification.
(Doc. #17). The motion has been fully briefed. (Docs. # 18–23). Having considered the briefs and
evidentiary submissions and for the reasons set out below, the court finds that there is a penultimate
question which must be addressed before the motion is to be considered. Accordingly, this case will
be stayed to allow the parties to file a report stating their respective positions with respect to the
Supreme Court’s anticipated decision in Edwards v. First Am. Corp., 610 F.3d 514 (9th Cir. 2010),
cert. granted 131 S.Ct. 3022 (U.S. June 20, 2011) (No. 10–708).
This case was filed under 15 U.S.C. § 1693 et. seq., commonly known as the Electronic Fund
Transfer Act (“EFTA”). Among other things, EFTA regulates notices on automatic teller machines
(“ATM”). EFTA provides that an ATM operator must place an actual physical notice concerning
transaction fees in a conspicuous location on or at the ATM in question. In this case it is alleged that
there was no physical notice at Defendant Publix Super Markets, Inc.’s (“Publix”) ATM. (Doc. #18
Colby, on behalf of himself and all others similarly situated, brought this action against
Publix based on its violation of EFTA. Colby seeks, on behalf of himself and the proposed class,
statutory damages, costs and attorney’s fees, all of which are expressly made available by statute.
15 U.S.C. § 1693m. (Doc. #18 at 4).
In addition to the Rule 23 issues presented by the motion and the parties’ briefing, the court
has two questions about the issue of standing in this case.
Does Colby (and Those He Seeks to Represent) Have Standing Under Article III
of the Constitution?
To assert a claim in federal court, a plaintiff must demonstrate standing under Article III of
the Constitution. Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1439 (2011). The
Supreme Court explained the three elements of the “irreducible constitutional minimum of standing”
in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992):
First, the plaintiff must have suffered an injury in fact – an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there must be a causal connection
between the injury and the conduct complained of – the injury has to be fairly . . .
trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court. Third, it must be likely,
as opposed to merely speculative, that the injury will be redressed by a favorable
Id. (internal quotations and citations omitted).1 That the injury must be “particularized” means that
it must “affect the plaintiff in a personal and individual way.” Id. at n.1. To show an injury in fact,
a plaintiff must demonstrate that “he personally has suffered some actual or threatened injury.”
The Supreme Court has also articulated three prudential considerations for assessing standing, Allen v. Wright,
468 U.S. 737, 751 (1984), which are not relevant at this point because Defendant has not argued that any of these
considerations weigh against standing.
CAMP Legal Defense Fund v. City of Atlanta, 451 F.3d 1257, 1269 (11th Cir. 2006) (citations
In Warth v. Seldin, the Supreme Court announced that “[t]he . . . injury required by Art. III
may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing
. . . .’” 422 U.S. 490, 500 (1975) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973)).
Several cases have interpreted this statement as equating constitutional standing with any statutory
violation. See, e.g., In re Carter, 553 F.3d 979, 989 (6th Cir. 2009). However, the Warth decision
also emphasized that “Art[icle] III’s requirement remains: the plaintiff still must allege a distinct and
palpable injury to himself,” Warth, 422 at 501, leading other cases to view Warth as requiring Article
III standing even when there has been a statutory violation, see, e.g., United States v. Weiss, 467 F.3d
1300, 1310–11 (11th Cir. 2006). Moreover, the Lujan decision questioned the extent of the Warth
statement that has been interpreted as conflating constitutional standing with any statutory violation,
and pointed out that there is a difference between expanding the statutory categories of injury that
may be alleged to support a finding of standing and eliminating the requirement that a plaintiff must
have suffered an injury to have standing. Lujan, 504 U.S. at 578 (citations omitted). There is
disagreement among the circuits over what the Supreme Court has instructed regarding whether a
statutory violation without actual harm may confer Article III standing, but the majority view appears
to consider a mere statutory violation as sufficient. See, e.g., Alston v. Countrywide Fin. Corp., 585
F.3d 753, 763 (3d Cir. 2009), but cf. U.S. ex rel. Kreindler & Kreindler v. United Techs. Corp., 985
F. 2d 1148, 1154 (2d Cir. 1993) (noting that “some injury-in-fact must be shown to satisfy
constitutional requirements, for Congress cannot waive the constitutional minimum of injury-infact”).
The Eleventh Circuit appears to require an injury independent of a statutory violation to
confer Article III standing. See Weiss, 467 F.3d at 1310–11. However, neither the Supreme Court
nor the Eleventh Circuit has addressed the issue of Article III standing in the context of EFTA
Whether the Supreme Court’s Decision in the Edwards Case May Affect this
In the Petition for Writ of Certiorari in Edwards, the Petitioners presented two questions to
the Supreme Court:
1) Did the Ninth Circuit err in holding that a private purchaser of real estate
settlement services has standing under RESPA to maintain an action in federal court
in the absence of any claim that the alleged violation affected the price, quality, or
other characteristics of the settlement services provided?
2) Does such a purchaser have standing to sue under Article III, § 2 of the United
States Constitution, which provides that the federal judicial power is limited to
“Cases” and “Controversies” and which this Court has interpreted to require the
plaintiff to “have suffered an ‘injury in fact,’” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992)?
Edwards v. First Am. Corp., 610 F.3d 514 (9th Cir. 2010), petition for cert. filed, 2010 WL 4876485,
at *1 (U.S. Nov. 23, 2010) (No. 10–708). The Court granted certiorari to the Ninth Circuit Court
of Appeals on the second question in the petition for writ of certiorari. First Am. Fin. Corp. v.
Edwards, 131 S. Ct. 3022 (2011). Question two addresses the same broad standing issue that seems
to be presented in this matter. Accordingly, this court concludes that the Supreme Court’s decision
in Edwards may affect the outcome of this matter, and in the interests of judicial and party economy,
this action should be stayed until the court issues its decision in Edwards and the parties have an
opportunity to file with the court a joint report stating their respective positions on Edwards’ effect
on this case.
For the reasons stated above, Plaintiff’s Motion for Class Certification (Doc. #17) and
Defendant’s Motion to Strike Plaintiff’s Declaration Filed in Support of his Motion for Class
Certification (Doc. # 21) are ADMINISTRATIVELY TERMINATED, and this action is
STAYED until the Supreme Court’s decision in Edwards. Within fourteen (14) days of any
decision being released in Edwards, the parties SHALL provide this court with a copy of the Court’s
decision and a joint report stating their respective positions about that decision’s effect on this case.
At that point, as appropriate, Plaintiff may re-file his motion and the court will determine how to
DONE and ORDERED this
day of June, 2012.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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