FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-03839,
DIVISION "C" Honorable Sidney H. Cates, Judge
R. Michaud PATRICK MILLER, LLC 400 Poydras Street, Suite 1680
New Orleans, LA 70130 COUNSEL FOR PLAINTIFF/APPELLANT, WALTER
Patrick Vance Tyler J. Rench JONES WALKER LLP 201 St. Charles
Avenue, Suite 5100 New Orleans, LA 70170-5100 AND Michael B.
Miller Robert J. Baehr MORRISON & FOERSTER, LLP 250 West
55th Street New York, NY 10019 COUNSEL FOR
DEFENDANT/APPELLEE, ADVANCE STORES, CO., INC.
composed of Judge Terri F. Love, Judge Terrel J. Broussard,
Pro Tempore, Judge Marion F. Edwards, Pro Tempore
F. LOVE JUDGE
appeal arises from plaintiff's class action petition,
which sought damages from defendant for disclosing his
personal identity information and the information of other
"similarly situated employees" to an unknown third
party. Plaintiff claimed that anxiety about his identity
possibly being stolen and two unrecognized credit checks were
injurious. Defendant filed exceptions of no right of action
and no cause of action, which the trial court granted. The
trial court found that the harm allegedly suffered by
plaintiff was speculative in nature; therefore, he possessed
no right of action. Further, as the element of damages was
lacking, he did not have a cause of action. Plaintiff
that the trial court correctly granted the defendant's
exception of no right of action because only speculative
future harm was alleged. The trial court also did not err by
maintaining the defendant's exception of no cause of
action, as the plaintiff lacked elements needed for each
theory of recovery. The judgment of the trial court is
BACKGROUND AND PROCEDURAL HISTORY
Bradix, IV was employed by Advance Stores Company, Inc. d/b/a
Advance Auto Parts ("Advance"). In March 2016, Mr.
Bradix received a letter notifying him of a data breach of
the employee information to an unauthorized third party. The
information included employees' names, social security
numbers, 2015 gross wages, and the state where each employee
paid income tax. Advance advised the former and current
employees affected to review the information contained in the
letter and remain vigilant. Additionally, Advance provided
free identity protection services for two years.
Bradix noticed two "as-yet unidentified inquiries on his
consumer credit monitoring" and suffered anxiety
worrying about a third party stealing his identity. As a
result, Mr. Bradix filed a Class Action Petition and Demand
for Jury Trial ("Petition") against Advance for
himself and "similarly situated employees." The
Petition alleged that Advance: 1) was negligent by permitting
the information to be stolen, 2) was grossly negligent in the
handling of the information, 3) breached its fiduciary
duties, and 4) was liable for an invasion of privacy.
Bradix's Petition was removed to the United States
District Court of the Eastern District of Louisiana
("EDLA"). Advance filed a Motion to Dismiss for
lack of standing and failure to state a claim pursuant to
F.R.C.P. 12(b)(1) and 12(b)(6). The EDLA issued an order
partially granting Advance's motion and found that Mr.
Bradix lacked standing pursuant to Article III of the United
States Constitution in federal court because Mr. Bradix
failed to allege a "certainly impending injury."
The EDLA noted that Mr. Bradix did "not even [allege]
that his credit score was adversely impacted by the two
inquiries." The EDLA, finding no subject matter
jurisdiction, remanded the matter to state court instead of
dismissing the suit. The EDLA reasoned that the Louisiana
state court must determine whether Louisiana law provided a
remanded to the trial court, Advance filed Peremptory
Exceptions of No Right and Action and No Cause of Action.
Following the submission of memoranda and a hearing, the
trial court sustained Advance's exceptions and dismissed
Mr. Bradix's Petition with prejudice. Mr. Bradix's
Motion for Order of Appeal followed.
Bradix contends that the trial court erred by granting
Advance's exceptions because standing was not lacking,
and he suffered harm.