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Randy Long, Individually and On Behalf of All Others Similarly Situated v. Tommy Hilfiger U.S.A.

February 11, 2011

RANDY LONG, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
TOMMY HILFIGER U.S.A., INC., AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION

I. Introduction

Pending before the court is a motion filed by defendant Tommy Hilfiger, U.S.A., Inc. ("defendant" or "Hilfiger") to dismiss the complaint filed by plaintiff Randy Long ("plaintiff"). (ECF No. 26.) The motion and a supporting brief (ECF No. 27) were filed on September 17, 2010. Hilfiger seeks dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)") for lack of subject-matter jurisdiction and Rule 12(b)(6) ("Rule 12(b)(6)") for failure to state a claim upon which relief can be granted.

Long commenced a class action against Hilfiger alleging that Hilfiger violated 15 U.S.C. § 1681c(g), which is a provision of the Fair and Accurate Credit Transaction Act ("FACTA"), as amended, 15 U.S.C. §§ 1681 et seq. Section 1681c(g) provides: "No person that accepts credit cards or debit cards for the transaction of business shall print more than the last five digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of sale or transaction." 15 U.S.C. § 1681c(g). On October 29, 2009, Long allegedly purchased neckwear at the Hilfiger store in Grove City, Pennsylvania. (Compl. (ECF No. 1) ¶ 44; Pl.‟s Br. in Supp. (ECF No. 29) at 5.) Long used his credit/debit card for the purchase. (Pl.‟s Br. in Supp. at 5.) The receipt displayed the last four digits of the card number and "04/##" in place of the expiration date. (Def.‟s Ex. A (ECF No. 12) (SEALED) at 3.)*fn1 Long seeks statutory damages of $100 to $1000 per transaction under § 1681n(a)(1)(a), as well as costs, attorneys‟ fees, and any further relief the court may deem proper. (Compl. at 13.)

Plaintiff seeks to pursue his claim on behalf of himself and a class alleged to be (1) all persons in the United States to whom, in a transaction occurring after December 4, 2006, Hilfiger provided receipts on which was "printed more than the last five digits of the person[‟s] credit card or debit card number," and (2) all persons in the United States to whom, in a transaction occurring after June 3, 2008, Hilfiger provided receipts on which was "printed the expiration date of the person‟s credit card." (Id. ¶ 26.)

Defendant argues it was in compliance with FACTA because the receipt in question only displayed the month and not the year of the credit card‟s expiration date, and a month is not an expiration date of a credit card under common parlance. (Def.‟s Br. in Supp. of Mot. to Dismiss (ECF No. 27) at 1.) For the reasons set forth below, defendant‟s motion to dismiss will be granted and the complaint will be dismissed with prejudice.

II. Standards of review

A. Rule 12(b)(6)

A motion to dismiss filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)") tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). If it is clear from the face of the complaint that the plaintiff has not alleged "a cognizable claim as a matter of law or fails to allege sufficient facts to support the claim, then the complaint should be dismissed." Cheskawich v. Three Rivers Mortg. Co., L.L.C., No. 05-691, 2006 WL 2529591, at *1 (W.D. Pa. Aug. 31, 2006); see Jordan v. Fox, Rothschild, O‟Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

While allowing for amendment to a complaint is consistent with Rule 15(a) of the Federal Rules of Civil Procedure, a court may decide to deny leave to amend for reasons such as undue delay, bad faith, dilatory motive, prejudice, and futility.*fn2 In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). The standard of legal sufficiency set forth in Federal Rule of Civil Procedure 12(b)(6) determines whether a proposed amendment would be futile. Id. at 1434. An amendment is futile where the complaint, as amended, would fail to state a claim upon which relief could be granted. Id.; see Cowell v. Palmer Twp., 263 F.3d 286, 296 (3d Cir. 2001) (noting that failure to overcome the time bar of a statute of limitations renders a proposed amendment futile).

B. Rule 12(b)(1) -- Subject-matter jurisdiction

A motion to dismiss for lack of subject-matter jurisdiction filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure ("Rule 12(b)(1)") raises the issue whether the court has the power to hear the matter before it. Mortensen v. First Fed. Sav. & Loan Ass‟n, 549 F.2d 884, 891 (3d Cir. 1977). The plaintiff always has the burden of persuasion and must prove that subject-matter jurisdiction exists. Mortensen, 549 F.2d at 891. A motion to dismiss for lack of subject-matter jurisdiction may facially or factually challenge the court‟s jurisdiction. Id. A facial challenge is a technical defect that occurs when the allegations in the complaint do not sufficiently illustrate the court‟s jurisdiction.

5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE ยง 1350 (2d ed. 1990). In that instance, a court may only look at the complaint and any attachments thereto to determine whether subject-matter jurisdiction exists. Mortensen, 549 F.2d at 891. In contrast, a factual challenge is a substantive defect that occurs when the court lacks actual subject-matter jurisdiction ...


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