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Bradix v. Advance Stores Company, Inc.

Court of Appeals of Louisiana, Fourth Circuit

August 16, 2017

WALTER BRADIX, IV
v.
ADVANCE STORES COMPANY, INC. D/B/A ADVANCE AUTO PARTSNO.

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-03839, DIVISION "C" Honorable Sidney H. Cates, Judge

          Marc R. Michaud PATRICK MILLER, LLC 400 Poydras Street, Suite 1680 New Orleans, LA 70130 COUNSEL FOR PLAINTIFF/APPELLANT, WALTER BRADIX, IV

          R. 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.

          Court composed of Judge Terri F. Love, Judge Terrel J. Broussard, Pro Tempore, Judge Marion F. Edwards, Pro Tempore

          TERRI F. LOVE JUDGE

         This 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 appealed.

         We find 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 affirmed.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Walter 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.

         Mr. 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.

         Mr. 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 remedy.

         Once 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.[1] Mr. Bradix's Motion for Order of Appeal followed.

         Mr. Bradix contends that the trial court erred by granting Advance's exceptions because standing was not lacking, and he suffered harm.

         STANDARD ...


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