Batra v. RLS Supermarkets, LLC
ORDER granting 13 Motion to Dismiss 13 Motion to Dismiss filed by RLS Supermarkets LLC terminated. (Ordered by Judge Jane J. Boyle on 8/9/2017) (Judge Jane J. Boyle)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
SUMEET BATRA, on behalf of himself
and all others similarly situated,
RLS SUPERMARKETS LLC,
CIVIL ACTION NO. 3:16-CV-2874-B
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant RLS Supermarkets LLC’s (RLS) Motion to Dismiss. Doc. 13.
For the reasons that follow, the Court GRANTS Defendant’s Motion.
This case is based on Defendant’s alleged violations of the Fair and Accurate Credit
Transactions Act (FACTA). The provision of FACTA at issue governs the “truncation” of credit
card and debit card numbers. See 15 U.S.C. § 1681c(g). Specifically, the statute provides the
[N]o 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 provided to the cardholder at the point of the sale or transaction.
15 U.S.C. § 1681c(g)(1).
The Court draws its factual account from Plaintiff’s Class Action Complaint and Jury Demand
[hereinafter Pl.’s Compl.] (Doc. 1) as well as from the briefing on the Motion before the Court today. Any
contested facts will be noted as such.
Plaintiff brings the suit as a putative class action. Plaintiff’s sole allegation is that he, and
other putative class members, received receipts from Defendant that had the following information
printed on them: (1) the expiration date of their credit or debit cards; (2) the last four digits of their
credit or debit card numbers; and (3) the brand of the credit or debit card. Doc. 1, Pl.’s Compl. ¶¶ 3,
31. Plaintiff asserts that printing this information amounted to Defendant willfully violating FACTA.
Id. ¶ 46.
The Complaint is otherwise devoid of specific factual allegations concerning Plaintiff’s
interaction with Defendant’s stores or any of the consequences that stemmed from the prohibited
information being printed on Plaintiff’s receipt. Instead, Plaintiff’s Complaint focuses on FACTA’s
purpose of combating “rampant identify theft.” Id. ¶¶ 4–6.
In October 2016, Plaintiff filed his Complaint seeking statutory damages for Defendant’s
alleged violations. Id. Defendant then filed its Motion to Dismiss under both Federal Rule of Civil
Procedure 12(b)(1), asserting that Plaintiff lacks Article III standing to pursue his claim, and Rule
12(b)(6), asserting thtat Plaintiff failed to state a claim. Doc. 13, Def.’s Mot. to Dismiss. Plaintiff filed
a Response (Doc. 17), and Defendant filed a Reply (Doc. 20). Therefore the Motion is ripe for the
“‘Federal courts are courts of limited jurisdiction.’” MacKenzie v. Castro, No. 3:15-cv-0752-D,
While Defendant’s Motion to Dismiss relies on both Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6), because the Court’s decision rests solely on Rule 12(b)(1), it need not provide the legal standard
for Rule 12(b)(6).
2016 WL 3906084, at *2 (N.D. Tex. July 19, 2016) (quoting Stockman v. Fed. Election Comm’n, 138
F.3d 144, 151 (5th Cir. 1998)). For that reason, they can adjudicate claims only when subject matter
jurisdiction “is expressly conferred by the Constitution and federal statute. Federal Rule of Civil
Procedure 12(b)(1) provides the vehicle through which” a party may challenge that jurisdiction.
Armstrong v. Tygart, 886 F. Supp. 2d 572, 584 (W.D. Tex. 2012) (internal citations omitted).
“Standing is an issue of subject matter jurisdiction, and thus can be contested by a Rule 12(b)(1)
motion to dismiss.” Little v. Tex. Attorney Gen., No. 3:14-cv-3089-D, 2015 WL 5613321, at *2 n.5
(N.D. Tex. Sept. 24, 2015) (citing Lee v. Verizon Commc’ns Inc., 954 F. Supp. 2d 486, 496 (N.D.
“A Rule 12(b)(1) motion can mount either a facial or factual challenge.” MacKenzie, 2016
WL 3906084, at *2. A facial challenge occurs “when a party files a Rule 12(b)(1) motion without
including evidence.” Id. A factual challenge, by contrast, occurs when a party supports its Rule
12(b)(1) motion with evidence. Id.
In both cases, the burden of proof “‘is on the party asserting jurisdiction.’” Id. (quoting
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam)). So Plaintiff must prove
jurisdiction exists. Yet that is no high bar: “‘[I]t is extremely difficult to dismiss a claim for lack of
subject matter jurisdiction.’” Santerre v. AGIP Petrol. Co., 45 F. Supp. 2d 558, 566 (S.D. Tex. 1999)
(quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1260 (11th Cir. 1997)).
When a party makes a Rule 12(b)(1) motion without including evidence, the challenge to
subject matter jurisdiction is facial. Hunter v. Branch Banking and Trust Co., No. 3:12-cv-2437-D,
2013 WL 607151, at *2 (N.D. Tex. Feb. 19, 2013) (citing Paterson v. Weinberger, 644 F.2d 521, 523
(5th Cir. 1981)). Here, Defendant merely filed its Rule 12(b)(1) motion without any additional
evidence, so it is considered a facial attack. Thus, the Court may consider just “the allegations in the
complaint because they are presumed to be true.” Paterson, 644 F.2d at 523. And if they sufficiently
allege a claim for recovery, then the complaint stands and the court must entertain the suit. Id.
FACTA’s Truncation Requirements
As stated above, this suit concerns alleged violations of 15 U.S.C. § 1681c(g), a provision of
the Fair Credit Reporting Act (FCRA) as amended by FACTA. The purpose of FACTA is to combat
the “increasing threat of identity theft.” Meyers v. Nicolet Rest. of De Pere, LLC, 843 F.3d 724, 725
n.2 (7th Cir. 2016). The provision of FACTA at issue governs the “truncation” of credit card and
debit card numbers. See 15 U.S.C. § 1681c(g). Specifically, § 1681c(g) provides:
[N]o 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 provided to the cardholder at the point of the sale or transaction.
15 U.S.C. § 1681c(g).
Here, Plaintiff asserts that Defendant improperly gave him and other putative class members
receipts with the following information printed on them: (1) the expiration date of their credit or
debit cards; (2) the last four digits of their credit or debit card numbers; and (3) the brand of the
credit or debit card. Doc. 1, Pl.’s Compl. ¶¶ 3, 31. As is apparent from the language of the statute,
printing only four digits of a credit or debit card number is not a violation. 15 U.S.C. § 1681c(g).
Furthermore, the statute does not consider whether printing the brand name of a credit or debit card
is prohibited. Id. Therefore, it appears that the only alleged action that is conceivably in violation of
§ 1681c(g) is Defendant printing credit or debit cards’ expiration dates on receipts. Furthermore,
Plaintiff focuses his argument on the expiration dates, so the Court do the same.
Plaintiff alleges that Defendant acted willfully in violating § 1681c(g). For willful violations
of the statute, a plaintiff may recover either actual damages or statutory damages. 15 U.S.C. §
1681n(a)(1)(A). In the case of statutory damages, a plaintiff may recover “not less than $100 and
not more than $1,000.” Id. Here, Plaintiff seeks to recover only statutory damages.
Article III Standing: Concrete Injury Requirement
Defendant’s Motion to Dismiss asserts that Plaintiff lacks standing to bring his claim under
FACTA because he did not plead a concrete injury. Doc. 13, Def.’s Mot. to Dismiss 1. Article III of
the Constitution limits federal court jurisdiction to actual “Cases” and “Controversies.” U.S. Const.
art. III, § 2, cl. 1. Where a court lacks the constitutional power to adjudicate a case, it must dismiss
it for lack of subject matter jurisdiction. Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d
1006, 1010 (5th Cir. 1998). The party invoking federal jurisdiction, not the party moving for
dismissal, bears the burden of establishing subject matter jurisdiction. Lujan v. Defs. of Wildlife, 504
U.S. 555, 561 (1991); In re Eckstein Marine Serv., 672 F.3d 310, 314 (5th Cir. 2012).
“The justiciability doctrines of standing, mootness, political question, and ripeness all
originate in Article III’s case or controversy language.” Choice Inc. v. Greenstein, 691 F.3d 710, 715
(5th Cir. 2012) (internal quotation marks omitted). For standing, a plaintiff must “demonstrate a
‘personal stake’ in the suit.” Camreta v. Greene, 563 U.S. 692, 701 (2011) (quoting Summers v. Earth
Island Inst., 555 U.S. 488, 493 (2009)).
The Supreme Court has determined that the “irreducible constitutional minimum” of
standing consists of three elements. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). To establish standing, a plaintiff must have
(1) “suffered an injury in fact”; (2) “that is fairly traceable to the challenged conduct of the
defendant”; and (3) “that is likely to be redressed by a favorable judicial decision.” Id. (citing Lujan,
504 U.S. at 560–61). At the pleading stage, the plaintiff must clearly allege facts demonstrating each
element. Spokeo, 136 S. Ct. At 1547.
Here, the dispute over Plaintiff’s standing concerns the first element—whether Plaintiff
suffered an injury in fact. See Lujan, 504 U.S. at 560. 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.’” Spokeo, 136 S. Ct. at 1548
(citing Lujan, 504 U.S. at 560). Defendant specifically argues that Plaintiff failed to plead a concrete
injury. Doc. 13, Def.’s Mot. to Dismiss 1. Thus, Plaintiff’s standing turns on whether he has
sufficiently alleged a concrete injury.
“A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Spokeo, 136 S.Ct. at
1548 (citing Black’s Law Dictionary 479 (9th ed. 2009)). That said, the injury can be an intangible
one that Congress identifies and elevates to the status of a concrete injury. Id. at 1549. But
Congress’s “role in identifying and elevating intangible harms does not mean that a plaintiff
automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory
right and purports to authorize that person to sue to vindicate that right.” Id. Therefore, “Article III
standing requires a concrete injury even in the context of a statutory violation.” Id. A plaintiff may
not “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-infact requirement of Article III.” Id. (citing Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)).
The Supreme Court noted, however, that there are some instances where “the violation of
a procedural right granted by statute can be sufficient . . . 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. (citing Fed. Election Comm’n v. Akins, 524 U.S. 11, 20–25 (1998)). In these limited circumstances,
“[t]he violation of a procedural right granted by statute can be sufficient . . . to constitute an injury
in fact.” Landrum v. Blackbird Ent., LLC, 214 F. Supp. 3d 566, 570 (S.D. Tex. 2016) (quoting id. at
A Violation of 15 U.S.C. §1681c(g) Constitutes a Bare Procedural Violation
Plaintiff argues that simply alleging a violation of § 1681c(g) is enough to allege a concrete
injury. Doc. 17, Pl.’s Resp. 2. In other words, Plaintiff believes this statute is one where Congress
intended the statutory violation to constitute a concrete injury without any additional showing of
harm.3 Plaintiff also argues that the violation constitutes an invasion of privacy, which can often
provide the basis for a lawsuit, so the violation, alone, creates a concrete injury. Doc. 17, Pl.’s Resp.
In support of this point, Plaintiff also attaches a brief filed by the United States in a 2007 case from
the Central District of California. Doc. 17-1, Ex. 1, Brief of the United States in Support of 15 U.S.C. §
1681c(g). Plaintiff requests that the Court take judicial notice of Exhibit 1 under Federal Rule of Evidence
201. Doc. 17-1, Pl.’s Req. for Judicial Notice, Ex. 1. “The court may judicially notice a fact that is not subject
to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). Requests for judicial notice of amicus briefs have
been construed as “an implicit attempt to extend [a party’s] page limits without leave.” Fox Television Stations,
Inc. v. Barry Driller Content Sys., PLC, 915 F. Supp. 2d 1138, 1142 (C.D. Cal. 2012). But some courts “have
taken judicial notice of amicus briefs that relate to the matters at issue.” In re Yahoo Mail Litig., 7 F. Supp. 3d
1016, 1025 (N.D. Cal 2014). And “as the brief is not a ‘fact,’ legal or adjudicative, but only legal argument,
Fed R. Evid. 201 is not a bar.” Nat. Res. Def. Council v. Sw. Marine, Inc., 39 F. Supp. 2d 1235, 1236 n.1 (S.D.
Cal. 1999). In the absence of any objection by Defendant, the Court will take judicial notice of the amicus
The Court, however, does not find the brief persuasive. First, the majority of the brief is dedicated
to arguing that the requirements of FACTA do not violate the First Amendment. See Doc. 17-1, Ex. 1, Brief
of the United States in Support of 15 U.S.C. § 1681c(g), at 7–21. Here, there is no First Amendment
argument at issue. Second, the brief focuses on why Congress chose to limit both the credit card digits and
the expiration date from being printed on a receipt. Id. at 5–7, 13–20. This is a different issue from what is
before the Court today. The parties do not dispute that a merchant must remove both the majority of credit
card digits as well as the expiration date from the receipt. The issue is whether simply printing the expiration
date creates an injury in fact sufficient to confer standing on a plaintiff.
Defendant disagrees and argues that Plaintiff’s allegations amount to a bare procedural
violation, divorced from any concrete harm. Doc. 14, Def.’s Mem. Supp. Mot. to Dismiss 4
[hereinafter Def.’s Br.]. Defendant relies on the Credit Card and Debit Card Receipt Clarification
Act of 2007, Pub. L. No. 110–241 § 2(a), 122 Stat. 1565, 1565 (2008) [hereinafter Clarification
Act]. In the Clarification Act, Congress stated that a potential “fraudster” is prevented from
perpetrating identify theft or credit card fraud so long as the credit or debit card digits are properly
truncated, regardless of whether the expiration date is included. Doc. 14, Def.’s Br. 5 (citing
Clarification Act, § 2(a)(6), 122 Stat. at 1565). Defendant asserts that this language indicates that
Congress does not believe that printing an expiration date on a receipt causes any harm. Doc. 14,
Def.’s Br. 5.
The Court agrees with Defendant and finds that a violation of 15 U.S.C. § 1681c(g) is not
one where the violation, alone, constitutes a concrete injury. See Crupar-Weinmann v. Paris Baguette
Am., Inc., 861 F.3d 76, 77 (2d Cir. 2017) (finding that printing the expiration date on a receipt
constitutes a “bare procedural violation”); Meyers, 843 F.3d at 727 n.2 (“But whether the right is
characterized as ‘substantive’ or ‘procedural,’ its violation must be accompanied by an injury-in-fact.
A violation of a statute that causes no harm does not trigger a federal case.”); Kamal v. J. Crew Grp.,
Inc., No. 2:15-cv-0190 (WJM), 2017 WL 2587617, at *4 (D.N.J. June 14, 2017) (“While Congress
undoubtedly hoped that FACTA would reduce identity theft, it does not follow that Congress
contemplated private actions by individuals who have not sustained any actual harm.”); Katz v.
Donna Karan Int’l, Inc., No. 14 Civ. 740 (PAC), 2017 WL 2191605, at *4 (S.D.N.Y. May 17, 2017)
(“[T]he substantive ‘truncation right’ alleged by Plaintiff is irreconcilable with . . . Spokeo’s holding
that not all statutory violations confer Article III standing.”); Stelmachers v. Verifone Sys., Inc., No.
5:14-cv-04912-DJD, 2016 WL 6835084, at *3 (N.D. Cal. Nov. 21, 2016) (finding that printing more
than five digits of a credit card number on a receipt was a bare procedural violation, requiring an
additional showing of concrete harm); Thompson v. Rally House of Kan. City, Inc., No. 15-00886-cvW-GAF, 2016 WL 8136658, at *5 (W.D. Mo. Oct. 6, 2016) (determining that printing ten digits
of a credit card number on a receipt was a bare procedural violation, requiring an additional showing
of concrete or actual harm).4
And Plaintiff’s additional argument that he suffered an invasion of privacy and therefore
alleged a concrete injury also fails. “While FACTA as a whole may implicate traditional privacy
interests, Plaintiff’s alleged injury does not.” Kamal, 2016 WL 6133827, at *4 (citing Braitberg, 836
F.3d at 930 (“Although there is a common law tradition of lawsuits for invasion of privacy, the
retention of information lawfully obtained, without further disclosure, traditionally has not provided
The Court notes that there are several courts that agree with Plaintiff. These courts have found that
alleging a violation of 15 U.S.C. § 1681c(g) is sufficient to allege a concrete injury. See Wood v. J. Choo USA,
Inc., 201 F. Supp. 3d 1332, 1340 (S.D. Fla. 2016) (finding that an additional showing of concrete harm was
unnecessary because the plaintiff “suffered a concrete harm as soon as [the defendant] printed the offending
receipt”); Guarisma v. Microsoft Corp., 209 F. Supp. 3d 1261, 1266 (S.D. Fla. 2016) (finding an alleged
violation of FACTA constituted a concrete injury in and of itself because “congress desired to create a
substantive legal right” to obtain a receipt without more than five digits of a credit card number as “FACTA
arose form a desire to prevent identity theft”); Altman v. White House Black Mkt, Inc., No. 1:15-cv-2451-SCJ,
2016 WL 3946780, at *5 (N.D. Ga. July 13, 2016) (determining that “Congress has provided [the plaintiff]
with a substantive right to receive a truncated credit card receipt” and that the alleged violation was sufficient
to show a concrete injury). These cases, though, appear to rely, in part, on Hammer v. Sam’s E., Inc., 754 F.3d
492 (8th Cir. 2013), a case Spokeo superseded. See Wood, 201 F. Supp. 3d at 1337; Guarisma, 209 F. Supp.
3d at 1266; Altman, 2016 WL 3946780, at *3. Hammer rests on the view that “the actual-injury requirement
may be satisfied solely by the invasion of a legal right that Congress created.” Hammer, 754 F.3d at 499. But
in Spokeo, the Supreme Court rejected this “absolute view and superseded [8th Circuit] precedent in
Hammer.” Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925, 930 (8th Cir. 2016). At bottom, the Court is
not persuaded by the district courts upon which Plaintiff relies. An alleged violation of 15 U.S.C. § 1681c(g),
without an additional showing of harm, is insufficient to establish a concrete injury.
the basis for a lawsuit in American courts.”)). Having determined that Defendant’s alleged violation
of FACTA constitutes a bare procedural violation, the Court can now turn to its analysis of whether
Plaintiff pled a concrete injury.
Plaintiff Did Not Suffer a Concrete Injury
Defendant argues that Plaintiff failed to plead a concrete injury because Plaintiff suffered no
increased risk of identity theft by Defendant’s alleged printing of his credit or debit cards’ expiration
dates. Doc. 14, Def.’s Br. 5–6. In alleging a concrete injury, a plaintiff need not allege that harm has
actually happened; a “risk of real harm” can satisfy the requirement of concreteness. Spokeo, 136 S.
Ct. at 1549. Here, Plaintiff does not allege that he or any putative class member have actually
suffered harm. Instead, Plaintiff alleges that Defendant harmed him and the putative class “by
exposing them to at least an increased risk of identity theft and credit and or debit card fraud.” Doc.
1, Pl.’s Compl. ¶ 45. Therefore “the key inquiry here is whether [Plaintiff’s] alleged bare procedural
violation—printing [Plaintiff’s] credit card expiration date on [his] receipt—presents a material risk
of harm to the underlying concrete interest Congress sought to protect in passing FACTA.” CruparWeinmann, 861 F.3d at 81.
As discussed above, Defendant relies on the Clarification Act to argue that Congress does
not believe that merely printing the expiration date of a credit or debit card on a receipt causes any
concrete harm. Doc. 14, Def.’s Br. 5 (citing Clarification Act, Pub. L. No. 110–241 § 2(a), 122 Stat.
at 1565). The Clarification Act emphasized that FACTA’s purpose “is 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.” Pub. L. No. 110–241 § 2(b), 122 Stat. at 1566. And
- 10 -
Congress specifically addressed printing expiration dates on receipts:
Experts in the field agree that proper truncation of the card number, by itself as
required by the amendment made by the Fair and Accurate Credit Transactions Act,
regardless of the inclusion of the expiration date, prevents a potential fraudster from
perpetrating identity theft or credit card fraud.
Clarification Act, Pub. L. No. 110–241 § 2(a)(6), 122 Stat. at 1565.
Plaintiff argues that the Clarification Act is irrelevant because its purpose was to grant
temporary immunity to merchants who were still printing the expiration date on receipts. Doc. 17,
Pl.’s Resp. 5 (citing Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 717 (9th Cir. 2010)). Congress
granted merchants immunity from statutory damages only, and the immunity expired on June 3,
2008, after which merchants had to comply with the statute’s requirements. Bateman, 623 F. 3d at
717. Plaintiff thus reasons that any guidance the Clarification Act may have offered expired in 2008.
Doc. 17, Pl.’s Resp. 5. And if Congress wanted to allow merchants to print a credit or debit card’s
expiration date on receipts indefinitely, Plaintiff argues, then it would have amended § 1681c(g). Id.
Plaintiff misses the point of Defendant’s argument. Defendant does not rely on the
Clarification Act to argue that it has no obligation to eliminate expiration dates from receipts. There
is no dispute that printing credit or debit cards’ expiration dates on receipts violates § 1681c(g). But
as discussed above, this provision is not one in which a violation alone constitutes a concrete injury.
So the issue before the Court is whether Plaintiff has alleged a material risk of harm in light of
Defendant’s alleged violation.
Defendant relies on Clapper v. Amnesty Int’l, USA, 568 U.S. 398 (2013) to argue that any risk
of harm stemming from Defendant’s alleged violation is simply speculative and subject to many
contingencies. Doc. 14, Def.’s Br. 6–7. Specifically, Defendant argues that for identity theft to occur
- 11 -
based on information printed on a receipt, Plaintiff would have to lose the receipt, someone would
have to find it, that individual would have to know how to use that information to defraud, and that
individual would then have to defraud Plaintiff or steal his identity. Id. at 7. This “speculative chain
of possibilities,” according to Defendant, is too attenuated to constitute a material risk of harm
sufficient to establish a concrete injury. Id. at 8 (quoting Clapper, 568 U.S. at 414).
Plaintiff rejects Defendant’s reliance on Clapper by arguing that FACTA provides a plaintiff
with a substantive right where a violation of that right alone creates a concrete injury. Doc. 17, Pl.’s
Resp. 12. Therefore, according to Plaintiff, Clapper is inapplicable. Id. Plaintiff essentially stakes his
entire standing argument on FACTA’s grant of a substantive right to receive a compliant receipt.
As discussed above, however, a violation of FACTA alone does not confer standing. An additional
showing of harm is necessary.
Ultimately, Plaintiff fails to plead an appreciable risk of harm stemming from Defendant’s
alleged violation. First, the Clarification Act “makes clear that Congress did not think that the
inclusion of a credit card expiration date on a receipt increases the risk of material harm of identity
theft.” Crupar-Weinmann, 861 F.3d at 81.
Second, “it is hard to imagine how the expiration date’s presence could have increased the
risk that [Plaintiff’s] identity would be compromised.” Meyers, 843 F.3d at 727. Plaintiff does not
allege that he lost the receipt or that someone else saw the receipt, so it is unlikely that simply
receiving a receipt with his own credit or debit cards’ expiration date created a material risk of harm.
See Spokeo, 136 S. Ct. at 1550 (“It is difficult to imagine how the dissemination of an incorrect zip
code, without more, could work any concrete harm.”). And to the extent that Plaintiff asserts that
he suffered a concrete injury through an invasion of privacy, that argument fails because there is no
- 12 -
indication that Defendant released the information or that any third party saw the information. See
Braitberg, 836 F.3d at 930 (finding that without the allegation that information was disclosed to a
third party or that a third party accessed personal information, the plaintiff did not allege an injury
in fact with regard to a privacy violation).
Third, the Fifth Circuit has made a similar finding in light of Spokeo in the context of The
Employee Retirement Income Security Act (ERISA). See Lee v. Verizon Commc’ns, Inc., 837 F.3d
523, 530 (5th Cir. 2016) (“A bare allegation of improper defined-benefit-plan management under
ERISA, without concomitant allegations that any defined benefits are even potentially at risk, does
not meet the dictates of Article III.”).
Finally, the Court’s conclusion that Plaintiff’s allegations do not amount to a material risk
of harm is in line with the vast majority of other district courts. See Cooper v. Roti Rest., LLC, No. 17cv-935, 2017 WL 3130755, at *1, 3 (N.D. Ill. July 24, 2017) (finding the sole allegation that a
defendant printed ten digits of a credit card insufficient to establish standing); Kamal, 2017 WL
2587617, at *5 (finding a plaintiff who received a receipt with ten digits of his credit card did not
suffer an increased risk of harm in light of his allegations that “dumpster divers” could find the
receipt or that “sophisticated criminals” might figure out the remaining digits); Katz, 2017 WL
2191605, at *2, 5 (finding that a plaintiff failed to show a risk of harm where the sole allegation was
that the plaintiff received two receipts with ten digits of the plaintiff’s credit card number); Hendrick
v. Aramark Corp., No. 16-4069, 2017 WL 1397241, at *5 (E.D. Pa. Apr. 18, 2017) (finding plaintiff
failed to allege an actual injury where he pled only that receiving a receipt with ten digits of his credit
card number subjected him to an increased risk of harm); Weinstein v. Intermountain Healthcare, Inc.,
No. 2:16-cv-00280-DN, 2017 WL 1233829, at *4 (D. Utah Apr. 3, 2017) (finding that the sole
- 13 -
allegation that a defendant printed the expiration date of the plaintiff’s credit card on a receipt,
without any other facts indicating a risk of harm, was insufficient to maintain standing); Paci v.
Costco Wholesale Corp., No. 16-cv-0094, 2017 WL 1196918, at *3 (N.D. Ill. Mar. 30, 2017) (finding
the allegation of harm—that a plaintiff had to take steps to ensure that her receipt with ten credit
card digits was stored in a safe place—was insufficient to establish standing).
In sum, Plaintiff failed to plead an injury in fact because he failed to show a concrete harm
or a material risk of harm apart from Defendant’s alleged bare statutory violation. Simply alleging
that a defendant failed to truncate a credit card’s expiration date is insufficient to confer Article III
standing. See Crupar-Weinmann, 861 F.3d at 82.
For the reasons discussed above, the Court concludes that Plaintiff suffered no concrete
injury and therefore lacks standing. Thus, the Court lacks subject matter jurisdiction over this case.5
“Because the only named [p]laintiff lacks standing, the [C]ourt need not further address issues
related to the class nature of this action.” Landrum, 2124 F. Supp. 3d at 573 (citing Dallas Gay
Alliance v. Dallas Cty. Hosp. Dist., 719 F. Supp. 1380, 1384–85 (N.D. Tex. 1989)). Accordingly, the
Court GRANTS Defendant’s Motion to Dismiss. Doc. 13. And so, the Court DISMISSES without
prejudice6 Plaintiff’s claims against Defendant.
As the Court’s decision rests solely on Federal Rule of Civil Procedure 12(b)(1), it need not
reach Defendant’s arguments on Rule 12(b)(6).
The Court’s dismissal is “for lack of subject matter jurisdiction (standing); therefore, it is without
prejudice.” Sepulvado v. La. Bd. of Pardons & Parole, 114 F. App’x 620, 622 (5th Cir. 2004); see also Alviar
v. Lillard, 854 F.3d 286, 292 (5th Cir. 2017) (“Because the court lacks subject matter jurisdiction over Lillard,
the claims against Lillard must be dismissed without prejudice.”).
- 14 -
SIGNED: August 9, 2017.
- 15 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?