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Fullwood v. Wolfgang's Steakhouse, Inc.

United States District Court, S.D. New York

November 3, 2017

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

          OPINION AND ORDER

          KATHERINE POLK FAILLA UNITED STATES DISTRICT JUDGE

         Plaintiff Cynthia M. Fullwood brings this putative class action against Wolfgang's Steakhouse, Inc. (“Wolfgang's”) and ZMF Restaurants LLC (collectively, “Defendants”), for violations of the Fair and Accurate Credit Transactions Act of 2003, 15 U.S.C. §§ 1681-1681x (“FACTA”). Defendants have - for the fourth time - moved to dismiss the action. In 2014, Defendants moved to dismiss Plaintiff's Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff did not adequately plead a willful violation of FACTA. The Court denied that motion in light of Plaintiff's proposed amendments, which were subsequently filed as the Second Amended Complaint in this matter. Fullwood v. Wolfgang's Steakhouse, Inc., No. 13 Civ. 7174 (KPF), 2014 WL 6076733 (S.D.N.Y. Nov. 14, 2014) (“Fullwood I”). In 2015, Defendants moved to dismiss the Second Amended Complaint under Rule 12(b)(6). The Court denied that motion, finding that Plaintiff had plausibly alleged a willful violation of FACTA. Fullwood v. Wolfgang's Steakhouse, Inc., No. 13 Civ. 7174 (KPF), 2015 WL 4486311 (S.D.N.Y. July 23, 2015) (“Fullwood II”).

         In 2016, Defendants moved to dismiss the Second Amended Complaint, this time under Federal Rule of Civil Procedure 12(b)(1) for a lack of standing in light of the Supreme Court's decision in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016). This time, the Court granted that motion. Fullwood v. Wolfgang's Steakhouse, Inc., No. 13 Civ. 7174 (KPF), 2017 WL 377931 (S.D.N.Y. Jan. 26, 2017) (“Fullwood III”). However, because the Second Amended Complaint had been filed pre-Spokeo, the Court granted leave to amend and instructed Plaintiff to plead facts showing she suffered a “concrete and particularized injury.” Fullwood III, 2017 WL 377931, at *7. Plaintiff filed her Third Amended Complaint (the “TAC”) on February 14, 2017.

         Defendants now move to dismiss the TAC under Federal Rule of Civil Procedure 12(b)(1) for a lack of standing. And they will receive now the repose they have so long sought. Plaintiff's amendments to her pleading are no match for the rising tide of binding precedent holding that a bare procedural violation of FACTA, without more, does not confer Article III standing. For the reasons stated below, Defendants' motion to dismiss is granted and Plaintiff's request for leave to amend is denied.

         BACKGROUND[1]

         A. Factual Background

         The Court assumes familiarity with its prior Opinions in this case and so will not belabor matters with a lengthy recitation of the facts. See Fullwood I, 2014 WL 6076733, at *1-2; Fullwood II, 2015 WL 4486311, at *1-2; Fullwood III, 2017 WL 377931, at *1. Defendants own and operate restaurants in this District as well as in California, Florida, and Hawaii. (TAC ¶ 9). Plaintiff alleges that Defendants repeatedly violated FACTA by printing full expiration dates on otherwise properly-redacted credit card receipts. (See generally id.). As in her prior complaints, Plaintiff alleges in the TAC that she dined at Wolfgang's location at 4 Park Avenue in New York, New York on October 3, 2013, paid for her meal with a credit card, and received a receipt that displayed the full expiration date of her credit card. (Id. at ¶ 17). Plaintiff does not allege that she has been the victim of identity theft or credit card fraud, nor does she allege any pecuniary damages that have flowed from Defendants' alleged FACTA violations; instead, she seeks statutory damages of “$100 to $1, 000 per violation” on behalf of herself and a class of similarly situated customers. (Id. at ¶ 106(a)). Plaintiff further alleges that Defendants' violations were willful. (Id. at ¶ 106; see also Id. at ¶¶ 67-89).

         These are the very facts upon which this Court granted Defendants' prior motion to dismiss under Rule 12(b)(1). See generally Fullwood III, 2017 WL 377931. The Court was clear, however, that its ruling was “not based on the conclusion that Defendants' willful violation of FACTA did not, or could not as a matter of law, inflict [] an injury on Plaintiff.” Id. at *7. Accordingly, the Court importuned Plaintiff to amend her pleading “with greater specificity as to the concrete and particularized injuries” she suffered due to Defendants' conduct. Id. In response, Plaintiff added to her pleading one new allegation pertinent to standing:

Plaintiff has used credit cards for previous purchases from Defendants, received credit card receipts at the point of sale, and threw out those earlier credit card receipts without burning them or otherwise destroying them. On information and belief, those earlier receipts also had the expiration date printed, thereby exposing her to identity thieves.

(TAC ¶ 20). Plaintiff's TAC contains numerous further additions, including more information about the risk and prevalence of identity theft, the legislative history of FACTA, and additional case law and secondary legal authority, but these amount to little more than legal arguments masquerading as factual allegations. (See, e.g., id. at ¶¶ 30, 32, 43-45).[2] Thus, the dispositive question before the Court is whether this single additional fact - that Plaintiff received an unspecified number of earlier receipts from Defendants showing her unredacted credit card expiration date, which receipts Plaintiff subsequently threw in the trash - amounts to an injury-in-fact sufficient to confer Article III standing.

         B. Procedural Background

         As noted above, this is Defendants' fourth motion to dismiss. Following the Court's directive in Fullwood III, Plaintiff filed the TAC on February 14, 2017. (Dkt. #71). Defendants filed the instant motion to dismiss on April 7, 2017. (Dkt. #74). Plaintiff filed her opposition to Defendants' motion on May 10, 2017 (Dkt. #76), and Defendants filed their reply in support of their motion on May 23, 2017 (Dkt. #77).

         Following the Second Circuit's decision in Crupar-Weinmann v. Paris Baguette America, Inc., 861 F.3d 76 (2d Cir. 2017), the Court ordered the parties to submit supplemental briefing. (Dkt. #81). The parties submitted their supplemental briefs on July 24, 2017. (Dkt. #84, 85). The parties subsequently submitted several notices of supplemental authority and related case orders (Dkt. #86, 89, 90). In one instance, Plaintiff offered additional legal argument. (Dkt. #86). As the Court explained in ...


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