Fullwood v. Wolfgang's Steakhouse, Inc.

Filing 70

OPINION AND ORDER re: 50 MOTION to Dismiss . filed by ZMF Restaurants LLC, Wolfgang's Steakhouse, Inc. For the foregoing reasons, Defendants motion to dismiss is GRANTED. Plaintiff may file a Third Amended Complaint within 21 days of the date of this Order; within 21 days thereafter, Defendants shall file an answer or otherwise respond. The Clerk of Court is directed to terminate the motion at docket entry 50. (As further set forth in this Order.) (Signed by Judge Katherine Polk Failla on 1/26/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
CYNTHIA M. FULLWOOD,
:
:
Plaintiff,
:
:
v.
:
:
WOLFGANG’S STEAKHOUSE, INC., and
:
ZMF RESTAURANTS LLC,
:
:
Defendants. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: January 26, 2017
______________

13 Civ. 7174 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
Plaintiff Cynthia M. Fullwood sued Defendants Wolfgang’s Steakhouse,
Inc. (“Wolfgang’s”) and ZMF Restaurants LLC, alleging that Defendants willfully
violated the Fair and Accurate Credit Transactions Act of 2003 (“FACTA”),
Pub. L. No. 108-159, 117 Stat. 1952 (codified as amended in 15 U.S.C.
§ 1681c(g)), by printing a credit card receipt that included her card’s expiration
date. In a previous opinion, the Court upheld as plausible Plaintiff’s claim of a
willful violation of FACTA. See Fullwood v. Wolfgang’s Steakhouse, Inc., No. 13
Civ. 7174 (KPF), 2015 WL 4486311, at *4 (S.D.N.Y. July 23, 2015) (“Fullwood
II”). In light of the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S.
Ct. 1540 (2016), Defendants now move to dismiss the case for lack of standing
pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendants’ motion is
granted because the Second Amended Complaint (or “SAC”) fails plausibly to
plead a concrete and particularized injury; Plaintiff’s corresponding request for
leave to file a Third Amended Complaint is also granted because the SAC

predated significant decisions from the Supreme Court and the Second Circuit
on which this Opinion relies.
BACKGROUND 1
A.

Factual Background
The Court assumes familiarity with its prior Opinions in this matter, see

Fullwood II, 2015 WL 4486311, at *1-2; Fullwood v. Wolfgang’s Steakhouse,
Inc., No. 13 Civ. 7174 (KPF), 2014 WL 6076733, at *1-2 (S.D.N.Y. Nov. 14,
2014) (“Fullwood I”), and only briefly recites the facts relevant to the instant
motion.
Plaintiff dined at Defendants’ Park Avenue location on October 3, 2013.
(SAC ¶¶ 6, 15). After paying for her meal with a credit card, she received an
electronically printed receipt displaying the card’s expiration date. (Id.).
Plaintiff alleges that Defendants’ act of printing the expiration date on the
receipt constituted a willful violation of FACTA. (Id. at ¶¶ 3, 76). She does not
allege that any pecuniary damages flowed from this act, but seeks statutory
damages on behalf of herself and a class of similarly situated plaintiffs. (Id. at
¶¶ 3, 9, 44).
Defendants have twice previously moved to dismiss the operative
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that

1

This Opinion draws on facts from the Second Amended Complaint (“SAC,” Dkt. #27),
the well-pled facts of which are taken as true for purposes of this motion. See Morrison
v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008); see also Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009). For convenience, Defendants’ moving brief is referred to as
“Def. Br.” (Dkt. #51); Plaintiff’s brief in opposition as “Pl. Opp.” (Dkt. #56); and
Defendants’ reply as “Def. Reply” (Dkt. #61).

2

Plaintiff had not plausibly pled a willful violation of FACTA. The Court denied
the first motion without prejudice for renewal upon Plaintiff’s filing of the SAC.
See Fullwood I, 2014 WL 6076733, at *1. The Court rejected the second
motion because it found the SAC plausibly to have pled that Defendants
willfully violated FACTA. See Fullwood II, 2015 WL 4486311, at *4 (“Plaintiff
has adequately alleged that Defendants, knowing of FACTA’s importance and
being informed of its requirements, either read or implemented those
requirements in such a reckless, haphazard manner as to run an unjustifiably
high risk of violating FACTA.”).
B.

Procedural Background
Plaintiff filed the Complaint on October 10, 2013, and an Amended

Complaint on November 4, 2013. (Dkt. #1, 5). On January 10, 2014,
Defendants moved to dismiss the Amended Complaint. (Dkt. #13). In her
opposition to the motion, Plaintiff included a proposed SAC. (Dkt. #18, Ex. H).
On November 14, 2014, 2 the Court issued Fullwood I, which denied
Defendants’ motion to dismiss without prejudice to refiling, and instructed
Plaintiff to file the SAC. See Fullwood I, 2014 WL 6076733, at *8. Plaintiff did
so on December 1, 2014 (Dkt. #27), and Defendants moved to dismiss the new
pleading on January 30, 2015 (Dkt. #31-34). On July 23, 2015, the Court
decided Fullwood II, which denied Defendants’ renewed motion because the

2

On the parties’ consent, the case was stayed between July 17, 2014, and October 1,
2014, pending a reconsideration decision in a similar case, Crupar-Weinmann v. Paris
Baguette Am., Inc., No. 13 Civ. 7013 (JSR), 2014 WL 4337978 (S.D.N.Y. Sept. 2, 2014).
See Fullwood v. Wolfgang’s Steakhouse, Inc., No. 13 Civ. 7174 (KPF), 2014 WL 6076733,
at *2 (S.D.N.Y. Nov. 14, 2014) (“Fullwood I”).

3

SAC plausibly pled that Defendants willfully violated FACTA. See Fullwood II,
2015 WL 4486311, at *4.
Following the Supreme Court’s decision in Spokeo, the Court held a premotion conference on July 21, 2016, and set a briefing schedule for
Defendants’ instant Rule 12(b)(1) motion. (Dkt. #47, 49, 52). Defendants filed
their motion and supporting brief on July 27, 2016 (Dkt. #50-51); Plaintiff her
opposition brief on August 26, 2016 (Dkt. #56); and Defendants their reply
brief on September 20, 2016 (Dkt. #61). After briefing was completed, the
Second Circuit decided Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. 2016).
Neither party sought leave to file a supplemental letter brief regarding Strubel’s
import, but each party submitted a short notice of authority statement about
the decision. (Dkt. #65-66). 3
DISCUSSION
A.

Applicable Law
1.

Motions to Dismiss Under Federal Rule of Civil
Procedure 12(b)(1)

“[A] district court may properly dismiss a case for lack of subject matter
jurisdiction under Rule 12(b)(1) if it lacks the statutory or constitutional power
to adjudicate it.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635,
638 (2d Cir. 2005) (internal quotation marks omitted) (quoting Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000)); accord Sokolowski v. Metro.
Transp. Auth., 723 F.3d 187, 190 (2d Cir. 2013). A “plaintiff asserting subject

3

The parties submitted additional notices of supplemental authority (see Dkt. #62-64,
67, 69), which have been considered to the extent relevant to the Court’s analysis.

4

matter jurisdiction has the burden of proving by a preponderance of the
evidence that it exists.” Makarova, 201 F.3d at 113.
In resolving a Rule 12(b)(1) motion to dismiss, “[t]he court must take all
facts alleged in the complaint as true and draw all reasonable inferences in
favor of [the] plaintiff, but jurisdiction must be shown affirmatively, and that
showing [may] not [be] made by drawing from the pleadings inferences
favorable to the party asserting it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d
167, 170 (2d Cir. 2008) (internal citation and quotation marks omitted). Where
subject matter jurisdiction is contested, a district court may consider evidence
outside the pleadings, such as affidavits and exhibits. See Zappia Middle East
Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); accord
Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir.
2014). And where, as here, “the Rule 12(b)(1) motion is facial, i.e., based solely
on the allegations of the complaint or the complaint and exhibits attached to it
(collectively the “Pleading”) … [t]he task of the district court is to determine
whether the Pleading ‘allege[s] facts that affirmatively and plausibly suggest
that [the plaintiff] has standing to sue.’” Carter v. HealthPort Techs., LLC, 822
F.3d 47, 56 (2d Cir. 2016) (alterations added) (quoting Amidax Trading Grp. v.
S.W.I.F.T. SCRL, 671 F.3d 140, 145-46 (2d Cir. 2011) (per curiam) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009))).
2.

The Fair and Accurate Credit Transactions Act

Congress enacted FACTA in 2003 to amend the Fair Credit Reporting Act
of 1970 (the “FCRA”). See Pub. L. No. 108-159, 117 Stat. 1952. The new

5

legislation was designed in part “to prevent criminals from obtaining access to
consumers’ private financial and credit information in order to reduce identity
theft and credit card fraud.” Pub. L. No. 110-241, § 2(a)(1), 122 Stat. 1565; see
also Pub. L. No. 108-159, 117 Stat. at 1952. As relevant here, FACTA prohibits
merchants who accept credit or debit cards for business transactions from
“print[ing] more than the last 5 digits of the card number or the expiration date
upon any receipt provided to the cardholder at the point of the sale or
transaction.” 15 U.S.C. § 1681c(g)(1). The Act adopts the two-tiered system of
liability set forth in the FCRA: negligent noncompliance with the statute creates
liability for actual damages and attorney’s fees, see id. § 1681o(a), while willful
noncompliance creates liability for actual damages or statutory damages
between $100 and $1,000, in addition to punitive damages and attorney’s fees,
see id. § 1681n(a); see Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57-58 (2007)
(holding that a defendant willfully violates § 1681n(a) if the violation was
committed knowingly or recklessly).
After FACTA’s passage, many merchants mistakenly believed that
§ 1681c(g)’s prohibition could be satisfied solely by truncating the card number
and not the expiration date. See Pub. L. No. 110-241, § 2(a)(3), 122 Stat. at
1565; see also Long v. Tommy Hilfiger U.S.A., Inc., 671 F.3d 371, 374 (3d Cir.
2012). Congress clarified this misunderstanding through the “Credit and Debit
Card Receipt Clarification Act” (the “Clarification Act”), and provided a limited
grace period for merchants who had printed a card expiration date for a
transaction between December 4, 2004, and June 3, 2008, but who had

6

otherwise complied with FACTA. See Pub. L. No. 110-241, § 3(a) (codified at 15
U.S.C. § 1681n(d)), 122 Stat. at 1566 (providing that such qualifying
merchants “shall not be deemed in willful noncompliance with § 1681c(g)”).
As part of the Clarification Act’s factual findings, Congress recognized
that “hundreds of lawsuits [had been] filed alleging that the failure to remove
the expiration date was a willful violation of the Fair Credit Reporting Act even
where the account number was properly truncated,” but that “[n]one of these
lawsuits contained an allegation of harm to any consumer’s identity.” Pub. L.
No. 110-241, § 2(a)(4)-(5), 122 Stat. at 1565. The purpose of the Clarification
Act, Congress declared, was “to ensure that consumers suffering from any
actual harm to their credit or identity are protected while simultaneously
limiting abusive lawsuits that do not protect consumers but only result in
increased cost to business and potentially increased prices to consumers.” Id.
§ 2(b), 122 Stat. at 1566.
As noted, Fullwood II upheld allegations that Defendants willfully violated
FACTA. See 2015 WL 4486311, at *4. The question presented here is whether
Plaintiff has plausibly pled a resulting injury sufficient to support Article III
standing.
3.

Standing
a.

Generally

To satisfy the “irreducible constitutional minimum” of Article III standing,
a plaintiff bears the burden of establishing (i) “injury in fact,” (ii) a “causal
connection” between that injury and the complained-of conduct, and (iii) a

7

likelihood “that the injury will be redressed by a favorable decision.” Lujan v.
Def. of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks
omitted); accord Spokeo, 136 S. Ct. at 1547. Here, Defendants argue that
Plaintiff fails adequately to plead the first element — that she suffered an injury
in fact. (See generally Def. Br.). To demonstrate injury in fact, a plaintiff must
show that she suffered (i) “an invasion of a legally protected interest,” (ii) “that
is concrete and particularized,” and (iii) “actual or imminent, not conjectural or
hypothetical.” Spokeo, 136 S. Ct. at 1547 (internal quotation marks omitted)
(quoting Lujan, 504 U.S. at 560).
Plaintiff has pled the invasion of a legally protected interest under FACTA
that is actual and not conjectural or hypothetical, because the law prohibited
Defendants, as merchants who accept credit cards for business transactions,
from printing Plaintiff’s credit card expiration date on her October 3, 2013
dining receipt. See 15 U.S.C. § 1681c(g)(1); see also Fullwood II, 2015 WL
4486311, at *3-4. Plaintiff’s standing thus turns on whether she has pled
adequately a “concrete and particularized” injury to her FACTA-conferred
interest. To be “particularized,” “the injury must affect the plaintiff in a
personal and individual way,” Lujan, 504 U.S. at 560 n.1, and to be “concrete,”
the injury “must be de facto; that is, it must actually exist,” Spokeo, 136 S. Ct.
at 1548 (internal quotation marks and citation omitted); see also id. (“When we
have used the adjective ‘concrete,’ we have meant to convey the usual meaning
of the term — ‘real,’ and not ‘abstract.’”).

8

b.

Concrete Injury After Spokeo and Strubel

The Supreme Court recently elaborated upon the concreteness
requirement in Spokeo. There, the Court evaluated whether a consumer had
standing to bring a claim under the FCRA, 15 U.S.C. §§ 1681-1681x, which
“seeks to ensure ‘fair and accurate credit reporting.’” Spokeo, 136 S. Ct. at
1545 (quoting § 1681(a)(1)). The plaintiff alleged that the defendant consumer
reporting agency had violated the FCRA because, inter alia, the agency had
failed to follow reasonable procedures to assure maximum possible accuracy of
consumer reports and, consequently, disseminated inaccurate information
about the plaintiff. Id. at 1545-46 (citing § 1681e(b)). The Court ultimately
vacated the Ninth Circuit’s finding of injury in fact because that finding was
based on an incomplete analysis that probed the particularity of the plaintiff’s
injury but not also its concreteness. Id. at 1550.
The Court reiterated that intangible injuries may be concrete, observing
that “Congress is well positioned to identify intangible harms that meet
minimum Article III requirements.” Spokeo, 136 S. Ct. at 1549; id. (“Congress
has the power to define injuries and articulate chains of causation that will give
rise to a case or controversy where none existed before.” (internal quotation
marks omitted) (quoting Lujan, 504 U.S. at 580 (Kennedy, J., concurring in
part and concurring in judgment))). A “risk of real harm” can thus also satisfy
Article III’s concreteness requirement. Id.
However, “a bare procedural violation, divorced from any concrete harm”
is insufficient; even in the context of a statutory violation, a concrete injury is

9

necessary. Spokeo, 136 S. Ct. at 1549. For example, the Court noted, an
FCRA procedural violation might not lead to the dissemination of inaccurate
information and, even if it did, the dissemination of inaccurate information
might not actually “cause harm or present any material risk of harm” to the
plaintiff. Id. at 1550. At the same time, “the violation of a procedural right
granted by statute can be sufficient in some circumstances to constitute injury
in fact. In other words, a plaintiff in such a case need not allege any additional
harm beyond the one Congress has identified.” Id. at 1549 (emphasis in
original).
After briefing on the instant motion was completed, the Second Circuit
decided Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. 2016), its first decision
interpreting Spokeo. 4 The Second Circuit understood Spokeo to instruct that
“an alleged procedural violation can by itself manifest concrete injury where
Congress conferred the procedural right to protect a plaintiff’s concrete
interests and where the procedural violation presents a ‘risk of real harm’ to
that concrete interest.” Id. at 189 (quoting Spokeo, 136 S. Ct. at 1549).
Strubel held that two of the defendant bank’s disclosure failures under
the Truth in Lending Act (the “TILA”), 15 U.S.C. §§ 1601-1677f, caused
concrete injury because both disclosure requirements “serve[] to protect a
consumer’s concrete interest in ‘avoid[ing] the uninformed use of credit,’ a core

4

Prior to Strubel, the Second Circuit cited to Spokeo in three summary orders, none of
which engaged with Spokeo’s substantive holding. See Cruper-Weinmann v. Paris
Baguette Am., Inc., 653 F. App’x 81 (2d Cir. 2016); Bank v. All. Health Networks, LLC,
No. 15-4037-cv, 2016 WL 6128043 (2d Cir. Oct. 20, 2016); Sikhs for Justice Inc. v.
Kerry, No. 15-4018-cv, 2016 WL 5791561 (2d Cir. Oct. 4, 2016).

10

object of the TILA.” Id. at 190 (quoting 15 U.S.C. § 1601(a)); see also id. at 191
(holding that the defendant’s alleged violations gave rise to a “risk of real harm”
to the consumer’s concrete interest in the informed use of credit). By contrast,
the Second Circuit concluded that the complaint failed to plead concrete injury
arising from two other disclosure failures because, inter alia, there was no
showing that those failures “created a ‘material risk of harm’ — or, indeed, any
risk of harm at all — to [the plaintiff’s] interest in avoiding the uninformed use
of credit.” Id. at 191-92; see also id. at 193.
B.

Analysis
1.

Plaintiff Fails Plausibly to Plead a Concrete and Particularized
Injury

Defendants argue that Plaintiff lacks standing because she fails
plausibly to plead a concrete injury, whether tangible or intangible. (Def. Br. 2,
5-6). Defendants note, for example, that Plaintiff nowhere alleges that she was
at risk of identity theft as a result of Defendants’ conduct. (Id. at 6; Def.
Reply 1). Beyond their claim that Plaintiff does not plausibly allege concrete
injury, Defendants also argue that Plaintiff could not allege an adequate injury
based solely on the printing of her credit card expiration date. This is so,
Defendants maintain, because “Congress has found that the dissemination of a
receipt with a credit card expiration date but with properly truncated credit
card numbers, exactly what Plaintiff alleges here, does not cause any concrete
risk of harm.” (Def. Br. 7 (emphasis omitted); see also id. at 9 (“Thus, the
redaction of a credit card expiration date provides no real protection against
credit card fraud so long as the credit card number is properly truncated, as
11

was alleged here. Absent such an inherent risk of harm, Plaintiff cannot show
a concrete injury and maintain standing.”)).
Defendants do not argue that Plaintiff fails plausibly to plead a
particularized injury. (See generally Def. Br.; see also Pl. Opp. 25). The Court
takes up that issue in any event, consistent with its “independent obligation to
consider the presence or absence of subject matter jurisdiction sua sponte …
[including] whether a plaintiff has standing under Article III to pursue its
claim.” Jennifer Matthew Nursing & Rehab. Ctr. v. U.S. Dep’t of Health &
Human Servs., 607 F.3d 951, 955 (2d Cir. 2010) (internal quotation marks
omitted) (quoting Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006)); see also
Spokeo, 136 S. Ct. at 1545, 1550 (vacating the Ninth Circuit’s judgment
because the court’s “incomplete” analysis conflated the injury-in-fact
requirement’s distinct elements of concreteness and particularity).
The Court finds that Plaintiff’s complaint, as presently constructed, does
not allege facts that plausibly plead a concrete and particularized injury
resulting from Defendants’ willful FACTA violation; the Court thus does not
reach the issue whether Plaintiff could allege such an injury based on
Defendants’ conduct. 5
The SAC adequately specifies how Defendants willfully violated FACTA.
(See, e.g., SAC ¶¶ 73-74 (alleging that “Defendants, at the point of sale or

5

Defendants urge the Court to strike certain materials referenced in Plaintiff’s opposition
brief as outside the pleadings. (See Def. Reply 10). Those materials are supplemental
authorities that do no more to cure Plaintiff’s pleading defects than does her opposition
brief.

12

transaction, provided Plaintiff and the other class members with electronically
printed receipts, each of which included the credit or debit card expiration
date …. Defendants knew of the prohibition of the printing of expiration dates
or were reckless [in] not knowing in light of the information readily available to
[them].”); id. at ¶¶ 62-64 (alleging that Defendants were informed of FACTA’s
requirements by a series of statements from Defendants’ merchant bank, point
of sale providers, and trade associations); id. at ¶¶ 67-70 (alleging that
Defendants’ insurance coverage negotiations involving FACTA-related provision
reflects knowledge of, or recklessness towards, FACTA requirements”)). See
also Fullwood II, 2015 WL 4486311, at *4 (“Defendants, knowing of FACTA’s
importance and being informed of its requirements, either read or implemented
those requirements in such a reckless, haphazard manner as to run an
unjustifiably high risk of violating FACTA.”).
These specific allegations of willful violation stand in sharp contrast to
the SAC’s conclusory and generalized allegations of resulting injury. The sum
total of Plaintiff’s allegations of injury is:


“Plaintiff Cynthia M. Fullwood … paid for her meal with
a credit card, received an electronically printed receipt
displaying the expiration date, and was damaged
thereby.” (SAC ¶ 6 (emphasis added)).



“By failing to comply[,] Defendants have deprived
consumers of the protections that the statute was
designed to confer, and expose[] cardholders to
increased risk of identity theft.” (Id. at ¶ 48 (emphases
added)).

This Court’s task is “to determine whether the [p]leading alleges facts
that affirmatively and plausibly suggest that the plaintiff has standing to sue.”
13

Carter, 822 F.3d at 56 (internal quotation marks and alterations omitted)).
“Where, as here, a case is at the pleading stage, the plaintiff must clearly allege
facts demonstrating each element” of standing. Spokeo, 136 S. Ct. at 1547
(internal quotation marks and alterations omitted) (quoting Warth v. Seldin,
422 U.S. 490, 518 (1975)); see also Warth, 422 U.S. at 518 (“It is the
responsibility of the complainant clearly to allege facts demonstrating that he is
a proper party to invoke judicial resolution of the dispute and the exercise of
the court’s remedial powers.”); Morrison, 547 F.3d at 170 (“[J]urisdiction must
be shown affirmatively, and that showing is not made by drawing from the
pleadings inferences favorable to the party asserting it.”).
The SAC’s conclusory allegation that Plaintiff was “damaged” by
Defendants’ conduct (SAC ¶ 6), and its generalized allegation parroting
FACTA’s purpose statement (id. at ¶ 48), are plainly insufficient to plead
plausibly that Plaintiff suffered a concrete and particularized injury. See Iqbal,
556 U.S. at 678 (“[B]are assertions ... are conclusory and not entitled to be
assumed true.”). “[N]ondescript and conclusory allegations of injury are not
the type of general factual allegations from which the Court may presume the
specific facts necessary to ensure that the plaintiff has standing, and are
insufficient to meet the plaintiff's burden of alleging an injury in fact that is
concrete and particularized.” Brown v. F.B.I., 793 F. Supp. 2d 368, 374
(D.D.C. 2011) (internal citation omitted); see also Valley Forge Christian Coll. v.
Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982)
(“[T]he party who invokes the court’s authority [must] show that he personally

14

has suffered some actual or threatened injury as a result of the putatively
illegal conduct of the defendant.” (internal quotation marks omitted)).
Plaintiff relies on cases such as Boelter v. Hearst Communications, Inc.,
No. 15 Civ. 3934 (AT), 2016 WL 3369541, at *3 (S.D.N.Y. June 17, 2016), to
support her standing argument. (See Pl. Opp. 8). But, among other
differences, the Boelter plaintiffs had clearly alleged the harms they suffered as
a result of the defendants’ conduct. See id. at *3 (paraphrasing allegations in
the amended complaint that described the injuries that the plaintiffs suffered).
The same cannot be said of Plaintiff here. Instead, her allegations more closely
resemble those in another case, Sartin v. EKF Diagnostics, Inc., No. 16 Civ.
1816, 2016 WL 3598297 (E.D. La. July 5, 2016), to which both parties cite.
(See Def. Br. 5-6; Pl. Opp. 24). The Sartin court dismissed for lack of standing
an action under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C.
§ 227, because the complaint had failed to allege “what specific injury, if any,
[the plaintiff] sustained through [the] defendants’ alleged statutory violations.”
Id. at *3; id. at *4 (finding that the “allegations in the complaint establish
nothing more than a bare violation of the TCPA, divorced from any concrete
harm to [the plaintiff]”).
Here, well-pled allegations describing Plaintiff’s injuries are found
nowhere in the SAC. The Court thus finds that Plaintiff fails to carry her
burden to clearly allege facts demonstrating a concrete and particularized
injury to support standing. See Spokeo, 136 S. Ct. at 1547; cf. Treiber v. Aspen
Dental Mgmt., Inc., 635 F. App’x 1, 3 (2d Cir. 2016) (summary order) (“While

15

plaintiffs’ assertion of price gouging might, properly pled, demonstrate injury,
because the allegation is wholly conclusory and unsupported by any facts, it is
insufficient to support standing.”).
2.

Plaintiff Is Granted Leave to Amend

Plaintiff has twice amended her complaint; once as a matter of right
pursuant to Rule 15(a)(1), and once with the Court’s leave pursuant to
Rule 15(a)(2). See Fullwood I, 2014 WL 6076733, at *2. The latter amendment
resulted in a pleading that survived Rule 12(b)(6) scrutiny. See Fullwood II,
2015 WL 4486311, at *4-5. Now faced with a Rule 12(b)(1) motion, Plaintiff
again seeks leave to cure any pleading deficiencies identified by Defendants’
motion. (Pl. Opp. 25). Although Plaintiff’s request is made in the alternative
and in a single sentence, her request is granted for the reasons that follow.
See Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190
(2d Cir. 2015) (rejecting the argument “that the denial of leave [to amend] was
proper because of the informality of the request, which was raised ‘in the
alternative’ at the end of [the plaintiffs’] brief opposing the motion to dismiss”).
Rule 15(a)(2) provides that “[t]he court should freely give leave [to amend]
when justice so requires,” though “it is within the sound discretion of the
district court to grant or deny leave to amend.” McCarthy v. Dun & Bradstreet
Corp., 482 F .3d 184, 200 (2d Cir. 2007). As noted, the Court’s grant of the
instant motion is based on the SAC’s failure adequately to plead that Plaintiff
suffered a concrete and particularized injury. It is not based on the conclusion
that Defendants’ willful violation of FACTA did not, or could not as a matter of

16

law, inflict such an injury on Plaintiff. Cf. Meyers v. Nicolet Rest. of De Pere,
LLC, 843 F.3d 724, 728 (7th Cir. 2016) (describing the Seventh Circuit as “the
first circuit to address the question of standing in FACTA cases after Spokeo”
and holding that “without a showing of injury apart from the statutory
violation, the failure to truncate a credit card’s expiration date is insufficient to
confer Article III standing”). The Court cannot find that re-pleading with
greater specificity as to the concrete and particularized injuries allegedly
suffered would be a futile exercise. See Hunt v. All. N. Am. Gov’t Income Tr.,
Inc., 159 F.3d 723, 728 (2d Cir. 1998).
It also bears mention that the SAC was filed before the Supreme Court
issued Spokeo, the very decision that prompted Defendants’ motion. (See Def.
Pre-Motion Letter, Dkt. #47). In the Court’s view, it would not comport with
the requirements of justice, see Fed. R. Civ. P. 15(a)(2), to grant Defendants’
motion, which is based principally upon a Supreme Court decision issued after
the SAC’s filing, without giving Plaintiff the chance to conform her pleading to
that new precedent. See, e.g., Cruper-Weinmann v. Paris Baguette Am., Inc.,
653 F. App’x 81, 82 (2d Cir. 2016) (summary order) (“Given the change Spokeo
effected in the standing doctrine, we remand to allow plaintiffs an opportunity
to replead their claims to comport with the pleading standards set forth in
Spokeo[.]”); Sartin, 2016 WL 3598297, at *4 (dismissing post-Spokeo a
complaint that had been filed pre-Spokeo, but granting leave to amend because
the plaintiff’s “failure to adequately allege a concrete injury in fact may reflect
mere pleading defect, rather than a more fundamental problem with his

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claims”); see generally Loreley, 797 F.3d at 190 (“Without the benefit of a
ruling, many a plaintiff will not see the necessity of amendment or be in a
position to weigh the practicality and possible means of curing specific
deficiencies.”).
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED.
Plaintiff may file a Third Amended Complaint within 21 days of the date of this
Order; within 21 days thereafter, Defendants shall file an answer or otherwise
respond. The Clerk of Court is directed to terminate the motion at docket
entry 50.
SO ORDERED.
Dated:

January 26, 2017
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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