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 UNITED STATES DISTRICT JUDGE
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”).
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.
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.
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).
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
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
(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). 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.
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).
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 ...