United States District Court, S.D. New York
CYNTHIA M. FULLWOOD, Plaintiff,
WOLFGANG'S STEAKHOUSE, INC., and ZMF RESTAURANTS LLC, Defendants
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge
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.
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.
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).
have twice previously moved to dismiss the operative
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6), arguing that 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.”).
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,  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 SAC plausibly pled that Defendants
willfully violated FACTA. See Fullwood II, 2015 WL
4486311, at *4.
the Supreme Court's decision in Spokeo, the
Court held a pre-motion 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).
Motions to Dismiss Under Federal Rule of Civil Procedure
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
matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists.”
Makarova, 201 F.3d at 113.
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))).
The Fair and Accurate ...