United States District Court, W.D. Louisiana, Shreveport Division
ELIZABETH ERNY FOOTE JUDGE
the Court is a motion to dismiss for lack of standing filed
by Defendant Wal-Mart Inc. ("Wal-Mart"). [Record
Document 7]. Because the Court finds that Clinton Strange
("Strange") has not alleged a concrete injury
caused by Wal-Mart's violation of the Fair and Accurate
Credit Transaction Act ("FACTA"), the motion is
GRANTED, and Strange's complaint is
DISMISSED WITHOUT PREJUDICE.
reduce the risk of identity theft, FACTA provides: "[N]o
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." 15 U.S.C. § l68lc(g)(1) (2012).
Intentional violations expose a merchant to liability for
"any actual damages sustained by the consumer as a
result of the failure or damages of not less than $100 and
not more than $1, 000." 15 U.S.C. § l68ln(a)(1)(A)
(2012); for negligent noncompliance, a merchant is liable for
actual damages only. 15 U.S.C. § l68lo(a)(1) (2012).
alleges that he visited a Wal-Mart store on October 13, 2015
where he paid for his purchases with a credit card. [Record
Document 3 at 3]. Upon returning home, he placed the receipt
in a shoe box. [Id.]. On January 1, 2018, he noticed
that the receipt included the last four digits of his credit
card number and the expiration date. [Id. at 4].
Concerned by this apparent FACTA violation, Strange contacted
Wal-Mart via an online form and was then instructed to speak
with a manager at the store that issued the receipt.
[Id.]. Strange alleges that as a result of his trip
to Wal-Mart to speak with the manager he "incurred
expenses regarding lost time from work, [m]ileage, and any
future costs both known and unknown as a direct and proximate
cause of the Defendant's willful and/or negligent
actions." [Id. at 10].
moved to dismiss, arguing that Strange lacks standing to
assert a procedural violation of FACTA because he did not
allege that the appearance of the expiration date on the
receipt caused him any injury. [Record Document 7]. Strange
has responded, asserting that lost time at work due to the
trip to Wal-Mart suffices to create standing. [Record
Federal Rule of Civil Procedure 12(b)(1) Standard
Rule of Civil Procedure 12(b)(1) allows a defendant to move
for the dismissal of a plaintiffs claims for lack of subject
matter jurisdiction. '"A case is properly dismissed
for lack of subject matter jurisdiction when the court lacks
the statutory or constitutional power to adjudicate the
case."' Home Builders Ass'n of Miss., Inc.
v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)
(quoting Nowak v. Ironworkers Local6 Pension Fund,
81 F.3d 1182, 1187 (2d Cir. 1996)). The plaintiff bears the
burden of establishing subject matter jurisdiction. In re
FEMA Trailer Formaldehyde Prods. Liab Litig,
668 F.3d 281, 286 (5th Cir. 2012) (citing Castro v.
United States, 560 F.3d 381, 386 (5th Cir. 2009),
vacated on other grounds, 608 F.3d 266 (5th Cir.
2010)). To determine whether it has subject matter
jurisdiction, the Court can look to "the complaint
alone, the complaint supplemented by the undisputed facts as
evidenced in the record, or the complaint supplemented by the
undisputed facts plus the court's resolution of the
disputed facts." Id. at 287 (citing Ramming
v. United States, 281 F.3d 158, 161 (5th Cir. 2001)).
defendant's Rule 12(b)(1) motion is a "facial
attack" unless supplemented with affidavits, testimony,
or other evidentiary materials. Paterson v.
Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In
considering a "facial attack, " the Court "is
required merely to look to the sufficiency of the allegations
in the complaint because they are presumed to be true. If
those jurisdictional allegations are sufficient the complaint
stands." Id. Because Wal-Mart submitted no
evidence with its Rule 12(b)(1) motion, it has raised a
"facial attack;" thus, the Court need only
determine whether Strange's complaint sufficiently
alleges the necessary jurisdictional facts.
Standing Requirement for Federal Subject Matter
court have jurisdiction only over "cases" and
"controversies" that are "amenable to, and
resolved by, the judicial process." Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 102 (1998)
(citing Muskrat v. United States, 219 U.S. 346,
356-57 (1911)). For a case to be justiciable, the plaintiff
must have standing. Id. (citing Whitmore v.
Arkansas, 495 U.S. 149, 155 (1990)). Standing requires
that a plaintiff demonstrate:
(1) [she] 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, ...