Taylor v. Fred's, Inc., Case No.: 2:17–CV–0495–VEH

• Court: United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
• Citation: 285 F.Supp.3d 1247
• Docket Number: Case No.: 2:17–CV–0495–VEH
• Parties: Tiffany TAYLOR, individually and on behalf of all others similarly situated, Plaintiff, v. FRED'S, INC. and Fred's Stores of Tennessee, Inc., et al., Defendants.
• Decision Date: 02 February 2018

285 F.Supp.3d 1247

Tiffany TAYLOR, individually and on behalf of all others similarly situated, Plaintiff,

v.FRED'S, INC. and Fred's Stores of Tennessee, Inc., et al., Defendants.

Case No.: 2:17–CV–0495–VEH

United States District Court, N.D. Alabama, Southern Division.

Signed February 2, 2018

Christopher T. Hellums, Jonathan S. Mann, Michael C. Bradley, Pittman Dutton & Hellums, Austin Brock Whitten, Birmingham, AL, for Plaintiff.

D. Keith Andress, Jade E. Sipes, Baker Donelson Bearman Caldwell & Berkowitz PC, Birmingham, AL, Kristine Leporati Roberts, Mary Wu Tullis, Baker Donelson Bearman Caldwell & Berkowitz PC, Memphis, TN, for Defendants.

MEMORANDUM OPINION

VIRGINIA EMERSON HOPKINS, United States District Judge

I. Introduction

Plaintiff 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).

Pending 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.

II. Standards

A. Rule 12(b)(1) Generally

As the 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 considered." Id.

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 allega tions 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 facts.").¹

Here, 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.

B. General Principles Governing Standing

"The 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, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (quoting Warth v. Seldin , 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ), abrogated on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc. , ––– U.S. ––––, 134 S.Ct. 1377, 188 L.Ed.2d 392 (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, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).

The 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, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (internal quotation marks omitted) (quoting Warth , 422 U.S. at 498, 95 S.Ct. 2197 ). "[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, 95 S.Ct. 2197. 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, 95 S.Ct. 2197 (quoting Baker v. Carr , 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ).

From a 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, 125 S.Ct. 564 (quoting Warth , 422 U.S. at 499, 95 S.Ct. 2197 ). "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, 125 S.Ct. 564 (citing Warth , 422 U.S. at 500, 95 S.Ct. 2197 ).

Finally, 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, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (emphasis added) (citing Los Angeles v. Lyons , 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) ).

C. Spokeo 's Examination of the Doctrine of Standing

The 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 , ––– U.S. ––––, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), as revised (May 24, 2016).² 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.

Finding 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 1550.³

As the Supreme Court explained the component of concreteness in Spokeo :

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 particularization.

"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 omitted).⁴

The Spokeo Supreme Court further instructed:

In determining whether an intangible harm

...