United States District Court, E.D. Tennessee
SUSAN HULLINGER, on behalf of herself and all others similarly situated. Plaintiff,
PARK GROVE INN, INC., et al., Defendants.
brings this class action against Park Grove Inn, Inc.,
alleging defendant violated the Fair and Accurate Credit
Transactions Act (FACTA) by printing the first six and last
four digits of her credit card number, as well as the
expiration date, on her receipt.
moves for dismissal for lack of subject matter jurisdiction,
stating that plaintiff has not alleged an injury in fact and
lacks standing to pursue her claim.
court will join the majority of federal courts holding that a
complaint asserting a mere violation of FACTA without factual
allegations of any actual or increased material risk of
identity theft does not confer Article III standing.
Accordingly, defendants' motion to dismiss is granted.
September 10, 2015, Hullinger made a purchase at Park Grove
Inn using her credit card. The receipt for the purchase
displayed the first six and the last four digits of the
credit card account number as well as the expiration date of
the credit card.
September 6, 2017, Hullinger filed suit alleging that Park
Grove Inn violated FACTA which prohibits printing more than
the last five digits of a credit card number or the
expiration date on a receipt. Hullinger alleges she was
subjected to a heightened risk of identity theft and that her
private information was exposed as a result of this FACTA
violation. Hullinger demands statutory damages, punitive
damages, costs, and attorney fees.
Standard of Review
motion under Federal Rule of Civil Procedure 12(b)(1) can
attack either a plaintiff's jurisdictional claim on its
face or the factual basis for the claim. Here, defendant
makes a facial challenge to the Complaint's allegations.
In facial challenges, the court will take all allegations
made by the plaintiff as true, and determine whether the
facts as stated provide a basis for federal jurisdiction.
Fleming v. Brennan, 2015 WL 5174043 at *2 (W.D.Tenn.
Sept. 3, 2015).
also seeks dismissal of the Complaint under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted.
Faced with a Rule 12(b)(6) motion, the court must (1)
construe the complaint in the light most favorable to
plaintiff, (2) accept as true all factual allegations in the
complaint, and (3) determine if there is any set of facts
plaintiff could prove which would entitle her to relief.
Meador v. Cabinet for Human Resources, 902 F.2d 474,
475 (6th Cir. 990).
Article III Standing
is “the threshold question in every federal case, and
if the plaintiff lacks standing, the federal court lacks
jurisdiction. Warth v. Seldin, 422 U.S. 490, 498
(1975). 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.”
Id. Standing under Article III has three elements.
First, the plaintiff must have suffered an “injury in
fact” - an invasion of a legally protected interest
that is “concrete and particularized, and actual or
imminent, not conjectural or hypothetical.” Lujan
v. Defs. Of Wildlife, 504 U.S. 555, 560 (1992). Second,
the injury must be “fairly traceable to the challenged
action of the defendant.” Id. at 561. The
burden is on the party invoking federal jurisdiction to
demonstrate Article III standing. Stalley v. ...