Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fullwood v. Wolfgang's Steakhouse, Inc.

United States District Court, S.D. New York

January 26, 2017

CYNTHIA M. FULLWOOD, Plaintiff,
v.
WOLFGANG'S STEAKHOUSE, INC., and ZMF RESTAURANTS LLC, Defendants

          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 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 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 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).[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 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.