Green v. Dickerson Stations, Inc.
Filing
27
ORDER denying 14 Motion to Dismiss for Failure to State a Claim; denying 14 Motion to Dismiss Case for Lack of Jurisdiction. Signed by Judge G. Patrick Murphy on 11/6/2013. (ktc)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERESA GREEN, individually and on
behalf of all others similarly situated,
Plaintiff,
vs.
DICKERSON STATIONS, INC.
d/b/a GAS MART,
Defendant.
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CIVIL NO. 13-267-GPM
MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff, on her behalf and behalf of a putative class, alleges Defendant sold gift cards that
imposed unlawful inactivity fees and unlawful expiration dates in violation of the Electronic
Funds Transfer Act (“EFTA”), 15 U.S.C. §§ 1693 et seq. and its implementing Regulation E, 12
C.F.R. §§ 205.1 et seq (Doc. 2). Plaintiff claims that on December 12, 2011 her in-laws
purchased a Gas Mart gift card in the amount of twenty-five dollars as a Christmas gift for her
(Doc. 2, p. 3). Plaintiff received the gift card—card number 119818—on December 25, 2011
(Doc. 2, p. 3). Though she claims she never used the card, she learned, on January 16, 2013, that
the gift card had no remaining balance (Doc. 2, p. 3). Plaintiff argues that EFTA prohibits
inactivity fees unless the card has been inactive for one year, and this card was not.
Defendant filed a motion to dismiss for failure to state a claim, for lack of jurisdiction, or in the
alternative for summary judgment and Plaintiff has filed a response (Docs. 14, 18). Defendant
contends Plaintiff lacks standing as there is no injury-in-fact: Defendant’s records show that the
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gift card was depleted by customer usage. Defendant also argues there is no actionable claim here
as Plaintiff is not claiming that this gift card was charged untimely inactivity fees. Defendant also
attaches exhibits to show that the gift card in question was not one of the gift cards purchased by
Plaintiff’s father-in-law on December 12, 2011, and neither of those cards were charged dormancy
fees or expired. Further, Plaintiff’s claim in Count II relies on an EFTA provision regulating
issuance of gift cards of expiration dates of less than five years—because the gift card attached to
Plaintiff’s complaint has no expiration date, Plaintiff has no meritorious claim.
Plaintiff’s
response essentially argues ‘Defendant has the facts wrong: the card attached to the complaint
was in fact purchased December 12, 2011, went unused, and was improperly charged inactivity
fees in violation of the statute.’
Standards of Review
To survive a motion to dismiss a plaintiff’s complaint “must state a claim to relief that is
plausible on its face.” McCauley v. City of Chicago, 671 F.3d 611, 615 (7th Cir. 2011) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” McCauley, 671 F.3d at 615. To survive a motion to dismiss
under Rule 12(b)(6), “[f]actual allegations must be enough to raise a right to relief above a
speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 550 U.S. 544, 555 (2007).
Conclusions and a formulaic recitation of the elements of a cause of action will not do.
Id.
Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
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of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when the evidence is such
that a reasonable jury could find for the nonmovant. Buscaglia v. United States, 25 F.3d 530, 534
(7th Cir. 1994).
The movant in a motion for summary judgment bears the burden of
demonstrating the absence of a genuine issue of material fact by specific citation to the record; if
the party succeeds in doing so, the burden shifts to the nonmovant to set forth specific facts
showing that there is a genuine issue of fact for trial. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). In considering motions for summary judgment, a court
construes all facts and draws all inferences from the record in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also Schacht v. Wisconsin Dep’t of
Corr., 175 F.3d 497, 504 (7th Cir. 1999) (noting summary judgment as the “put up or shut up
moment in a lawsuit, when a party must show what evidence it has that would convince a trier of
fact to accept its version of events.”).
Analysis
The issue of standing addresses “whether the plaintiff has alleged such a personal stake in the
outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify
exercise of the court's remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498–99
(1975). To establish standing, Plaintiff must allege: 1) she suffered an actual or imminent injury
in fact which is concrete and particularized; 2) the injury is fairly traceable to the challenged action
of Defendant; and 3) a favorable decision would redress her injury. See Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992). The Seventh Circuit has noted Article III standing requirements
are rather “undemanding.” Id. (quoting North Shore Gas Co. v. E.P.A., 930 F.2d 1239, 1242 (7th
Cir. 1991)). At the pleading stage, general factual allegations of injury resulting from the
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defendant’s conduct may suffice. Family & Children’s Ctr. v. School City, 13 F.3d 1052, 1058
(7th Cir. 1994) (citing Lujan, 504 U.S. at 561).
On a motion to dismiss, the Court must “assume that general allegations embrace those
specific facts that are necessary to support the claim.” Lujan, 504 U.S. at 561 (quoting Lujan v.
National Wildlife Federation, 497 U.S. 871, 889 (1990)). Here, Plaintiff alleges she suffered an
actual injury in fact by being deprived of the value of the $25 gift card (Doc. 2, p. 3). Plaintiff
further contends her deprivation is fairly traceable to Defendant’s improperly imposed inactivity
fees in violation of the EFTA and Regulation E (Doc. 2, p. 6–7). Finally, Plaintiff alleges this
Court may redress her injury by injunctive relief, and the award of damages under EFTA (Doc. 2,
p. 7).
Plaintiff’s pleading sufficiently alleges the Lujan standing requirements to survive
Defendant’s motion to dismiss.
The purpose of a Rule 12(b)(6) motion is to decide the adequacy of the complaint, not to
determine the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990). In considering a motion to dismiss for failure to state a claim upon which relief can be
granted, the Court accepts all well-pleaded allegations in a plaintiff's complaint as true. See Fed.
R. Civ. P. 12(b)(6); Cleveland v. Rotman, 297 F.3d 569, 571 (7th Cir. 2002). A complaint should
not be dismissed under Rule 12(b)(6) unless it either fails to provide adequate notice, or does not
contain “enough facts to state a claim to relief that is plausible on its face,” that is, the claim has not
been “nudged ... across the line from conceivable to plausible[.]” Twombly, 550 U.S. at 570; see
also EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007). “A complaint
need not ‘allege all, or any, of the facts logically entailed by the claim,’ and it certainly need not
include evidence.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (quoting Bennett
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v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998)) (emphasis in original).
Plaintiff states a plausible claim in Count I. Under EFTA and Regulation E, Defendant is
prohibited from imposing “a dormancy, inactivity, or service fee with respect to a gift certificate,
store gift card, or general use prepaid card, unless: (1) there has been no activity with respect to the
certificate or card, in the one-year period ending on the date on which the fee is imposed[.]” 12
C.F.R. § 205.20(d). To state a claim upon which relief may be granted under the EFTA and
Regulation E, Plaintiff must allege Defendant imposed a dormancy, inactivity, or service fee on its
gift card before one year of inactivity. Here, Plaintiff alleges she never used the gift card issued
by Defendant (Doc. 2, p. 3), the gift card “imposes” inactivity fees after six months (Doc. 2, p. 6–
7), and she was deprived of money that was improperly charged, collected, and retained by
Defendant in violation of the EFTA and Regulation E (Doc. 2, p. 7). These allegations state a
claim.
Defendant argues Plaintiff’s use of the word “imposes,” instead of “imposed,” is indicative of
a generalized statement based solely on language found on the gift card. It is clear, however, that
Plaintiff is claiming she was actually harmed by wrongfully imposed fees. The complaint is
sufficient. Further, even considering the transaction record evidence adduced by Defendants
under the incorporation-by-reference doctrine, the evidence serves to raise issues of material fact,
not settle them. The parties present contradictory evidence: Was gift card 119818 purchased on
December 12, 2011? When was card 119818 purchased and what was the original balance? Was
the balance on that gift card depleted by customer use? Was the gift card inactive and charged
inactivity fees? Were inactivity fees charged violative of EFTA? In deciding summary judgment
motions, the Court may not determine the weight of evidence presented, but instead, must only
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determine whether Plaintiff alleged specific facts to surpass the summary judgment standard. See
Anderson, 477 U.S. at 255. Here, Plaintiff has successfully set forth specific facts alleging the
card in question was improperly charged inactivity fees. Defendant’s motion is DENIED.
IT IS SO ORDERED.
DATED: November 6, 2013
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G. PATRICK MURPHY
United States District Judge
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