United States District Court, N.D. Alabama, Southern Division
TIFFANY TAYLOR, individually and on behalf of all others similarly situated, Plaintiff,
FRED'S, INC. and FRED'S STORES OF TENNESSEE, INC., et al., Defendants.
VIRGINIA EMERSON HOPKINS United States District Judge
Tiffany Taylor (“Ms. Taylor”) initiated this
purported class action arising under the Fair and Accurate
Credit Transactions Act of 2003 (“FACTA”), 15
U.S.C. § 1681c(g), an amendment to the Fair Credit
Reporting Act (“FCRA”), 15 U.S.C. §§
1681-1681x, against Defendants Fred's, Inc. and
Fred's Stores of Tennessee, Inc. (collectively
“Fred's”) on March 29, 2017. (Doc. 1). On May
24, 2017, Ms. Taylor filed a First Amended Class Action
Complaint (the “FAC”). (Doc. 29).
before the Court is Fred's Motion To Dismiss
Plaintiff's First Amended Class Action Complaint (doc.
32) (the “Motion”) filed on June 7, 2017.
Fred's brings this Motion pursuant to Rule 12(b)(1) and
Rule 12(b)(6). The Court has reviewed the parties'
filings offered in support of and opposition to the Motion.
(Docs. 32-1, 34, 35, 45, 46, 48, 55). For the reasons set out
below, the Motion is due to be granted in part and otherwise
termed as moot.
Rule 12(b)(1) Generally
Eleventh Circuit has explained the standard on motions to
dismiss for lack of subject matter jurisdiction:
Attacks on subject matter jurisdiction under Fed.R.Civ.P.
12(b)(1) come in two forms. “Facial attacks” on
the complaint “require the court merely to look and
see if [the] plaintiff has sufficiently alleged a basis of
subject matter jurisdiction, and the allegations in his
complaint are taken as true for the purposes of the
motion.” Menchaca v. Chrysler Credit
Corp., 613 F.2d 507, 511 (5th Cir.), cert.
denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217
(1980) (citing Mortensen v. First Fed. Sav. & Loan
Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).
“Factual attacks, ” on the other hand, challenge
“the existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the
pleadings, such as testimony and affidavits, are
These two forms of attack differ substantially. On a
facial attack, a plaintiff is afforded safeguards similar to
those provided in opposing a Rule 12(b)(6) motion-the court
must consider the allegations of the complaint to be
true. Williamson v. Tucker, 645 F.2d 404, 412
(5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct.
396, 70 L.Ed.2d 212 (1981). But when the attack is factual,
the trial court may proceed as it never could under 12(b)(6)
or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1)
motion is the trial court's jurisdiction-its very power
to hear the case-there is substantial authority that the
trial court is free to weigh the evidence and satisfy itself
as to the existence of its power to hear the case. In short,
no presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims.
Id. at 412-13 (quoting Mortensen, 549 F.2d
at 891). Lawrence v. Dunbar, 919 F.2d 1525, 1528-29
(11th Cir. 1990) (emphasis added); see also Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. 1981) (“The
district court consequently has the power to dismiss for lack
of subject matter jurisdiction on any one of three separate
bases: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed
the jurisdictional attack is facial. (See Doc. 32 at
1 (“[T]hough Plaintiff has filed an amended complaint,
Plaintiff continues to fail to plead injury-in-fact as
required by Article III of the U.S. Constitution.”)).
Consequently, the Court has accepted all allegations
contained in Ms. Taylor's FAC as true.
General Principles Governing Standing
Constitution limits the exercise of the judicial power to
cases and controversies.” Church of Scientology
Flag Serv. Org., Inc. v. City of Clearwater, 777 F.2d
598, 604 (11th Cir. 1985). “The Art. III doctrine that
requires a litigant to have ‘standing' to invoke
the power of a federal court is perhaps the most important of
these doctrines [that pertain to the case-or-controversy
requirement]. ‘In essence the question of standing is
whether the litigant is entitled to have the court decide the
merits of the dispute or of particular issues.'”
Allen v. Wright, 468 U.S. 737, 750-51 (1984)
(quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)),
abrogated on other grounds by Lexmark Int'l, Inc. v.
Static Control Components, Inc., 134 S.Ct. 1377 (2014).
An individual plaintiff has standing under the
Constitution's case-or-controversy limitation in Art.
III, § 2, when “(1) [the plaintiff] has suffered
an ‘injury in fact' that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)).
doctrine of standing encompasses “both constitutional
limitations on federal-court jurisdiction and prudential
limitations on its exercise.” Kowalski v.
Tesmer, 543 U.S. 125, 128 (2004) (internal quotation
marks omitted) (quoting Warth, 422 U.S. at 498).
“[S]tanding in no way depends on the merits of the
plaintiff's contention that particular conduct is
illegal[.]” Warth, 422 U.S. at 500. Standing,
instead, is based on whether the plaintiff has
“‘alleged such a personal stake in the outcome of
the controversy' as to warrant his invocation of
federal-court jurisdiction and to justify exercise of the
court's remedial powers on his behalf.”
Warth, 422 U.S. at 498-99 (quoting Baker v.
Carr, 369 U.S. 186, 204 (1962)).
prudential standpoint more particularly, “a party
‘generally must assert his own legal rights and
interests, and cannot rest his claim to relief on the legal
rights or interests of third parties.'”
Kowalski, 543 U.S. at 129 (quoting Warth,
422 U.S. at 499). “This rule assumes that the party
with the right has the appropriate incentive to challenge (or
not challenge) governmental [or private] action and to do so
with the necessary zeal and appropriate presentation.”
Kowalski, 543 U.S. at 129 (citing Warth,
422 U.S. at 500).
a plaintiff “bears the burden of showing that he has
standing for each type of relief sought.”
Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009) (emphasis added) (citing Los Angeles v.
Lyons, 461 U.S. 95, 105 (1983)).
Spokeo's Examination of the Doctrine of
jurisdictional portion of Fred's Motion is primarily
premised upon the Supreme Court's examination of standing
and the reversal of the Ninth Circuit in Spokeo, Inc. v.
Robins, 136 S.Ct. 1540 (2016), as revised (May
24, 2016). Spokeo, a company that “operates a
‘people search engine'”, was sued in district
court under the Fair Credit Reporting Act
(“FCRA”) when the plaintiff discovered that a
search request concerning him contained inaccurate personal
information. Id. at 1544. Determining that the
plaintiff lacked standing, the district court dismissed the
case. Id. On appeal, the Ninth Circuit reversed and
the Supreme Court granted certiorari review of that standing
determination. Id. at 1544-45, 1546.
the Ninth Circuit's analysis of standing to be
“incomplete, ” the Supreme Court “vacat[ed]
the decision below and remand[ed] for the Ninth Circuit to
consider both aspects of the injury-in-fact
requirement.” Id. at 1545 (emphasis in
original). More specifically, “[t]he Ninth
Circuit's analysis focused on the second characteristic
(particularity), but it overlooked the first
(concreteness).” Id. The Supreme Court
expressed no opinion “as to whether the Ninth
Circuit's ultimate conclusion-that Robins adequately
alleged an injury in fact-was correct.” Id. at
Supreme Court explained the component of concreteness in
A “concrete” injury must be “de
facto”; that is, it must actually exist. See
Black's Law Dictionary 479 (9th ed. 2009). When we
have used the adjective “concrete, ” we have
meant to convey the usual meaning of the term-“real,
” and not “abstract.” Webster's
Third New International Dictionary 472 (1971);
Random House Dictionary of the English Language 305
(1967). Concreteness, therefore, is quite different from
“Concrete” is not, however, necessarily
synonymous with “tangible.” Although tangible
injuries are perhaps easier to recognize, we have confirmed
in many of our previous cases that intangible injuries can
nevertheless be concrete.
Id. at 1548-49 (some citations
Spokeo Supreme Court further instructed:
In determining whether an intangible harm constitutes injury
in fact, both history and the judgment of Congress play
important roles. Because the doctrine of standing derives
from the case-or-controversy requirement, and because that
requirement in turn is grounded in historical practice,
it is instructive to consider whether an alleged
intangible harm has a close relationship to a harm that has
traditionally been regarded as providing a basis for
a lawsuit in English or American courts. See Vermont
Agency of Natural Resources v. United States ex rel.
Stevens, 529 U.S. 765, 775-777, 120 S.Ct. 1858, 146
L.Ed.2d 836 (2000). In addition, because Congress is well
positioned to identify intangible harms that meet minimum
Article III requirements, its judgment is also instructive
and important. Thus, we said in Lujan that
Congress may “elevat[e] to the status of legally
cognizable injuries concrete, de facto injuries that were
previously inadequate in law.” 504 U.S., at 578,
112 S.Ct. 2130. Similarly, Justice Kennedy's concurrence
in that case explained that “Congress has the power to
define injuries and articulate chains of causation that will
give rise to a case or controversy where none existed
before.” Id., at 580, 112 S.Ct. 2130 (opinion
concurring in part and concurring in judgment).
Id. at 1549 (emphasis added).
in illustrating the meaning of these (and other) principles
of concreteness, the Supreme Court provided two examples of
conceivable violations of FCRA that would lack the level of
concreteness necessary to satisfy Article III's
On the one hand, Congress plainly sought to curb the
dissemination of false information by adopting procedures
designed to decrease that risk. On the other hand, Robins
cannot satisfy the demands of Article III by alleging a bare
procedural violation. A violation of one of the FCRA's
procedural requirements may result in no harm. For example,
even if a consumer reporting agency fails to provide the
required notice to a user of the agency's consumer
information, that information regardless may be entirely
accurate. In addition, not all inaccuracies cause harm
or present any material risk of harm. An example that
comes readily to mind is an incorrect zip code. It is
difficult to imagine how the dissemination of an incorrect
zip code, without more, could work any concrete harm.
Id. at 1550 (emphasis added).
alternatively maintains that Ms. Taylor's FAC is subject
to dismissal pursuant to Rule 12(b)(6). (Doc. 32 at 1). A
Rule 12(b)(6) motion attacks the legal sufficiency of the
complaint. See Fed. R. Civ. P. 12(b)(6) (“[A]
party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be
granted[.]”). The Federal Rules of Civil Procedure
require only that the complaint provide “‘a short
and plain statement of the claim' that will give the
defendant fair notice of what the plaintiff's claim is
and the grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47 (1957) (footnote omitted)
(quoting Fed.R.Civ.P. 8(a)(2)), abrogated by Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007);
see also Fed. R. Civ. P. 8(a) (setting forth general
pleading requirements for a complaint, including providing
“a short and plain statement of the claim showing that
the pleader is entitled to relief”).
plaintiff must provide the grounds of his entitlement to
relief, Rule 8 does not mandate the inclusion of
“detailed factual allegations” within a
complaint. Twombly, 550 U.S. at 555 (quoting
Conley, 355 U.S. at 47). However, at the same time,
“it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550
U.S. at 563.
court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. “While
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”
Id. “When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an
entitlement to relief.” Id. (emphasis
added). “Under Twombly's construction of
Rule 8 . . . [a plaintiff's] complaint [must]
‘nudge [any] claims' . . . ‘across the line
from conceivable to plausible.' Ibid.”
Iqbal, 556 U.S. at 680.
is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. “The
plausibility standard is not akin to a ‘probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. (quoting Twombly, 550 U.S. at 556).
Ms. Taylor Has Not Shown an Injury-in-Fact.
raises two issues in its initial brief regarding standing.
First, Fred's maintains that Ms. Taylor's allegations
do not show that she has suffered an injury-in-fact. (Doc.
32-1 at 8-21). Second, even assuming Ms. Taylor has
suffered a cognizable injury-in-fact, such an injury is not
traceable to any alleged violation of the FACTA by
Fred's. (Doc. 32-1 at 21-22). With the foregoing
standards in mind, the Court turns to an evaluation of
whether Ms. Taylor's FACTA allegations establish an
Ms. Taylor's FACTA Allegations and the
Purpose of FACTA
Taylor asserts that, on or about April 2, 2016, she
“purchased certain goods from [Fred's] business
location in Bessemer, Alabama.” (Doc. 29 at 11 ¶
33). Ms. Taylor paid for her purchases using “her
personal VISA debit card” and received a receipt that
“displayed the first six digits and the last four
digits of [that] debit card.” Id. “This
receipt also displayed [Ms. Taylor's] full name.”
on or about January 2, 2017, Ms. Taylor bought items
“from Fred's business location in Marion,
Alabama.” (Doc. 29 at 12 ¶ 34). The receipt that
she received on this date “displayed the first six
digits and the last four digits of her VISA debit
Taylor also bought items “from Fred's business
location in Pleasant Grove location” on or about March
13, 2017. (Doc. 29 at 12 ¶ 35). The receipt she received
on this visit reflected “the expiration date of her
[VISA] debit card.” Id.
from these specific dates, Ms. Taylor alleges that she
“made additional prior purchases with the same VISA
debit card . . . within the last five years . . . and did not
retain the receipts.” (Doc. 29 at 12 ¶ 36). Ms.
Taylor asserts that “[t]hese lost or discarded
electronically-printed receipts . . . likely contain more
than the last five digits or the expiration date of
her VISA debit card.” Id. (emphasis added).
Taylor did not discover Fred's noncompliance with FACTA
until March 2017. (Doc. 29 at 12 ¶ 37). Since then, Ms.
Taylor “has expended time, effort, and resources
monitoring her financial accounts and credit reports to
protect herself from identity theft and financial
fraud.” (Doc. 29 at 13 ¶ 37). Ms. Taylor further
contends that Fred's actions have caused her to
“suffer other intangible injuries, including …
stress, worry, concern, and frustration from the imminent,
increased risk of identity theft and financial fraud . . .
.” (Doc. 29 at 13 ¶ 38).
Taylor maintains that Fred's electronic-receipt practices
violate 15 U.S.C. § 1681c(g). That section of the FCRA
as amended by FACTA provides:
(g) Truncation of credit card and debit card
(1) In general Except as otherwise provided
in this subsection, no 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.
This subsection shall apply only to receipts that are
electronically printed, and shall not apply to transactions
in which the sole means of recording a credit card or debit
card account number is by ...