Chris Donovan v. Kydia, Inc. et al

NOTICE OF MOTION AND MOTION for Summary Judgment

C.D. Cal.October 17, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT KYDIA, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1134963.2 CAROTHERS DiSANTE & FREUDENBERGER LLP David G. Hagopian, State Bar No. 145171 dhagopian@cdflitigation.com Jeffrey Sikkema, State Bar No. 164367 jsikkema@cdflitigation.com CAROTHERS DISANTE & FREUDENBERGER LLP 2600 Michelson Drive Suite 800 Irvine, California 92612 Telephone: (949) 622-1661 Facsimile: (949) 622-1669 Attorneys for Defendant KYDIA, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CHRIS DONOVAN, individually and on behalf of all other similarly situated, Plaintiff, vs. KYDIA, INC., an Illinois Corporation; and DOES 1 to 10, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-4994-GW (PLAx) Assigned for All Purposes To: Judge: George H. Wu Ctrm: DEFENDANT KYDIA, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LEON CHEN Date: November 17, 2016 Time: 8:30 a.m. Ctrm: 10 Action Filed: July 7, 2016 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on November 17, 2016 at 8:30 a.m., or as soon thereafter as this matter may be heard, in Courtroom 10 of the United States District Court for the Central District of California, located at 312 North Spring Street, Los Angeles, CA 90012, Defendant KYDIA, INC. (“Defendant” or “Kydia”) will, and hereby does, move this Court, the Hon. George H. Wu, for an order granting summary judgment in favor of Kydia and against Plaintiff CHRIS DONOVAN (“Donovan”). Case 2:16-cv-04994-GW-PLA Document 36 Filed 10/17/16 Page 1 of 14 Page ID #:133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT KYDIA, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1134963.2 CAROTHERS DiSANTE & FREUDENBERGER LLP The basis for this motion (“Motion” or “Summary Judgment Motion”) is that, since Kydia neither accepted Donovan’s credit card, nor printed nor provided Donovan’s credit card receipt anywhere, let alone at the point of the sale or transaction, Kydia is not and cannot be liable to Donovan under the “truncation requirement” of the Fair and Accurate Credit Transactions Act (15 U.S.C. § 1681c(g)(1)) (“FACTA”) as a matter of law, thereby entitling Kydia to summary judgment. Kydia also has brought a Motion for Judgment on the Pleadings under Rule 12(c), which is set to be heard at the same time as this Summary Judgment Motion. Kydia’s Motion for Judgment on the Pleadings has two bases: (1) Donovan lacks Constitutional standing to sue over the credit card receipt in federal court due to the absence of any “injury-in-fact” related to the allegations, Spokeo, Inc. v. Robins, __ U.S. __, 136 S.Ct. 1540 (2016); and (2) the Complaint also fails to state a claim under FACTA because it alleges delivery of the receipt at Donovan’s personal address, which negates any application of FACTA at all, much less a “willful” violation needed to support the statutory and punitive damages sought in the Complaint. 5 U.S.C. § 1681c(g)(1). Rule 12(g) allows Rule 12(c) motions to be joined with other motions, such as a Rule 56 motion. This Summary Judgment Motion is based on this Notice of Motion, Defendant’s Memorandum in Support of Summary Judgment Motion under FRCP 56, the attached Declaration of Leon Chen, Defendant’s Rule 12(c) motion papers, as well as all supporting documents, and other pleadings on file in this matter, oral argument to be presented to the Court, and other such matters the Court may consider. Case 2:16-cv-04994-GW-PLA Document 36 Filed 10/17/16 Page 2 of 14 Page ID #:134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANT KYDIA, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1134963.2 CAROTHERS DiSANTE & FREUDENBERGER LLP This Motion is made following the conference of counsel pursuant to Local Rule 7-3, which took place on September 26, 2016. Dated: October 17, 2016 CAROTHERS DISANTE & FREUDENBERGER LLP By: /s/ David G. Hagopian David G. Hagopian Attorneys for Defendant KYDIA, INC. Case 2:16-cv-04994-GW-PLA Document 36 Filed 10/17/16 Page 3 of 14 Page ID #:135 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page i DEFENDANT KYDIA, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1134963.2 I. INTRODUCTION............................................................................................1 II. BACKGROUND..............................................................................................2 III. LEGAL ARGUMENT .....................................................................................2 A. When No Dispute of Material Fact Exists as is the Case Here, the Moving Party is Entitled to Summary Judgment ...................3 B. Kydia Never “Accepted” Donovan’s Credit Card .................................5 C. Kydia Never Printed the Receipt at Issue in This Action ......................5 D. Kydia Never “Provided” the Receipt to Donovan at the Point of the Sale or Transaction.............................................................6 IV. CONCLUSION ................................................................................................7 Case 2:16-cv-04994-GW-PLA Document 36 Filed 10/17/16 Page 4 of 14 Page ID #:136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) ii DEFENDANT KYDIA, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1134963.2 Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986)................ 4 Andrade v. Desert Champions LLC, 113 F.Supp.3d 1020 (N.D. Cal. 2015)............................................................................................................. 3, 6 Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548 (1986)......................... 4 NACS v. Board of Governors of the Federal Reserve System, 746 F.3d 474 (D.C. Cir. 2014)......................................................................................... 5 Planet Payment, Inc. v. Nova Information Systems, Inc., No. 07-cv- 2520, 2011 WL 1636921, *1 (E.D. N.Y. March 31, 2011) ............................. 5 Schneider v. TRW, Inc., 938 F.3d 986 (9th Cir. 1992) ............................................... 3 Simonoff v. Expedia, Inc., 643 F.3d 1202 (9th Cir. 2011).......................................... 5 Stelmachers v. Verifone Systems, Inc., No. 5:14-cv-04912, 2015 WL 8027902, *3 (N.D. Cal. Dec. 7, 2015) ............................................................. 5 Statutes 15 U.S.C. § 1681c(g) .................................................................................................. 2 15 U.S.C. § 1681c(g)(1)...................................................................................... 1, 2, 7 Rules FRCP 56(a) ................................................................................................................. 3 FRCP 56(b) ................................................................................................................. 3 FRCP 56(c).................................................................................................................. 4 FRCP 56(c)(1)(A) ....................................................................................................... 4 FRCP 56(c)(1)(B) ....................................................................................................... 4 Case 2:16-cv-04994-GW-PLA Document 36 Filed 10/17/16 Page 5 of 14 Page ID #:137 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT KYDIA, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1134963.2 CAROTHERS DiSANTE & FREUDENBERGER LLP MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Chris Donovan (“Donovan”) lives in Huntsville, Alabama and alleges in his Complaint that he ordered food for home delivery using his mobile phone and a restaurant ordering application called “BeyondMenu.” He alleges that the food was delivered to his personal residence along with a credit card receipt that contained more of his credit card information than is permitted by the “truncation requirement” of 15 U.S.C. § 1681c(g)(1) of the Fair and Accurate Credit Transactions Act (“FACTA”). He filed his Complaint against and tries to blame Kydia, Inc. (“Kydia”)–the Illinois corporation that provides the BeyondMenu mobile phone restaurant ordering application–for the allegedly offending restaurant receipt. He does not claim that he was “damaged” by the receipt, but rather, only alleges statutory and punitive damages under FACTA for “willful” violation of the truncation requirement. FACTA prohibits those who “accept” credit or debit cards from “printing” a non-truncated receipt “provided” to the cardholder “at the point of the sale or transaction.” For at least three separate reasons, however, Kydia cannot have violated the truncation requirement of FACTA. First, Kydia never “accepted” Donovan’s credit card since the local restaurant processed his order directly. Second, Kydia (in Illinois) never and could not possibly have “printed” the receipt in Alabama to accompany Donovan’s meal delivery just a short time later. Third, Kydia never “provided” the receipt with the order to Donovan at his house, which, in any event, is not “the point of the sale or transaction.” Since Kydia did not accept Donovan’s credit card, nor print nor provide Donovan’s receipt at all, much less at the point of the sale or transaction, Kydia did not violate FACTA’s truncation requirement as a matter of law. Thus, this Court should grant summary judgment in favor of Kydia and against Donovan pursuant to Rule 56. Case 2:16-cv-04994-GW-PLA Document 36 Filed 10/17/16 Page 6 of 14 Page ID #:138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT KYDIA, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1134963.2 CAROTHERS DiSANTE & FREUDENBERGER LLP II. BACKGROUND Donovan resides in Madison County, Alabama (Statement of Uncontroverted Facts (“SUF”), No. 1), and he ordered food for home delivery from a local Alabama restaurant using Kydia’s “BeyondMenu” mobile phone restaurant ordering application (id. at No. 2). Kydia is located in Northbrook, Illinois. Id. at No. 3. Donovan alleges that when his meal items were delivered to his personal address in Huntsville, Alabama, a receipt accompanied his order that included information violating FACTA’s truncation requirement. Id. at Nos. 4-5. Specifically, Donovan cites 15 U.S.C. § 1681c(g)(1), which prohibits any person that “accepts” credit or debit cards from “print[ing]” more than the last five digits of the card number, or the card expiration date, on any receipt “provided to the cardholder at the point of the sale or transaction.” Complaint, p. 4, ¶ 19. Although Kydia was in Illinois while Donovan was buying food items for delivery from a local restaurant in Alabama, Donovan alleges that his delivery receipt was “from” BeyondMenu.com (Complaint, p. 4, ¶ 17) and that Kydia “provided” Donovan with the receipt (Complaint, p. 8, ¶ 40). In a conversation between counsel, Mr. Donovan’s lawyers asserted that the BeyondMenu name appears on the receipt, which apparently is the sole basis for their refusal to drop the Complaint. But the conduct Donovan relies on for his FACTA claim was engaged in (if at all) by the restaurant, not Kydia. The restaurant, not Kydia, accepted Donovan’s credit card for processing. SUF, No. 6. In addition, the restaurant, not Kydia, printed Donovan’s receipt and provided it with his food order when it delivered his order, if in fact that is what happened. Id. at No. 7. III. LEGAL ARGUMENT FACTA prohibits those who “accept” credit or debit cards from “printing” a non-truncated receipt “provided” to the cardholder “at the point of the sale or transaction.” Specifically, 15 U.S.C. § 1681c(g) provides: Case 2:16-cv-04994-GW-PLA Document 36 Filed 10/17/16 Page 7 of 14 Page ID #:139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANT KYDIA, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1134963.2 CAROTHERS DiSANTE & FREUDENBERGER LLP … no 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. (Emphasis added.) See also Andrade v. Desert Champions LLC, 113 F.Supp.3d 1020, 1022 (N.D. Cal. 2015) (“FACTA prohibits any person that accepts credit or debit cards from printing more than the last five (5) digits of the card number on the receipts . . . .”). Thus, in order to state his sole cause of action against Kydia under FACTA’s truncation requirement, Donovan bears the burden of proving at least the following three elements: (1) Kydia accepted his credit card; (2) Kydia printed his receipt; and (3) Kydia provided his receipt at the point of the sale or transaction. Donovan, however, cannot satisfy his proof burden on any of these elements, much less all three of them as required by law. A. When No Dispute of Material Fact Exists as is the Case Here, the Moving Party is Entitled to Summary Judgment. Summary judgment motions can be brought “at any time until 30 days after the close of all discovery,” FRCP 56(b), and dispose of claims that have no factual support, as well as claims with undisputed facts that turn solely on issues of law. FRCP 56(a); see also Schneider v. TRW, Inc., 938 F.3d 986, 991 (9th Cir. 1992). When there is no genuine dispute as to any material fact, the moving party, as a matter of law, is entitled to summary judgment on any claim or defense (or to partial summary judgment on any part of a claim or defense). FRCP 56(a). The moving party Case 2:16-cv-04994-GW-PLA Document 36 Filed 10/17/16 Page 8 of 14 Page ID #:140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFENDANT KYDIA, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1134963.2 CAROTHERS DiSANTE & FREUDENBERGER LLP need only “show that there is no genuine dispute as to any material fact”1 thus entitling it to judgment as a matter of law. Id. The moving party can do so either (1) by showing that a fact “cannot be . . . genuinely disputed” (by citing to “particular parts of materials in the record, including . . . documents, . . . affidavits or declarations, . . . admissions, . . . or other materials”); or (2) by showing that “the materials cited do not establish the . . . presence of a genuine dispute or that an adverse party cannot produce admissible evidence to support the fact.” FRCP 56(c)(1)(A) and (B). The moving party, however, need not provide any evidence on matters as to which the opposing party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986) (“Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on file.’ Such a motion, whether or not accompanied by affidavits, will be ‘made and supported as provided in this rule.’”) Once the moving party meets its burden of production and persuasion, the opposing party may not rest on its pleadings. Rather, in order to avoid summary judgment, the opposing party must affirmatively show a genuine dispute as to a material fact. FRCP 56(c); see also Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. “The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for [the nonmoving party].” Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. 1 Whether a genuine dispute of fact is “material” is determined by the operative pleadings (here, the Complaint) and the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986) (“the substantive law will identify which facts are material”). Case 2:16-cv-04994-GW-PLA Document 36 Filed 10/17/16 Page 9 of 14 Page ID #:141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANT KYDIA, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1134963.2 CAROTHERS DiSANTE & FREUDENBERGER LLP B. Kydia Never “Accepted” Donovan’s Credit Card. Consumer retail credit and debit card transactions involve a “merchant,” such as a store owner, who contracts with an “acquirer” (a bank or financial institution) that processes the card charges on behalf of the merchant for the merchant’s account; it is the merchant that “accepts” the credit or debit card for processing pursuant to its contract with the acquirer. See NACS v. Board of Governors of the Federal Reserve System, 746 F.3d 474, 477 (D.C. Cir. 2014); Planet Payment, Inc. v. Nova Information Systems, Inc., No. 07-cv-2520, 2011 WL 1636921, *1 (E.D. N.Y. March 31, 2011). A FACTA claim must establish that the defendant was the “merchant” that “accepted” the plaintiff’s credit card payment, not merely a person that somehow facilitated the transaction with a product or service. See Stelmachers v. Verifone Systems, Inc., No. 5:14-cv-04912, 2015 WL 8027902, *3 (N.D. Cal. Dec. 7, 2015) (dismissing FACTA claim against manufacturer of product used to enable plaintiff’s credit card payment for a taxi cab ride). Kydia was not the “merchant” in Donovan’s credit transaction with the restaurant and did not “accept” his card for processing pursuant to any arrangement with an acquirer; rather, his credit card was accepted by the restaurant for processing for the restaurant’s account. SUF, Nos. 6-7. Because Kydia did not “accept” Donovan’s credit card order, it cannot be liable to him under FACTA’s truncation requirement as a matter of law. C. Kydia Never Printed the Receipt at Issue in This Action. Liability under FACTA’s truncation provision requires the merchant to physically print the receipt. An emailed receipt, for example, is not covered by FACTA, even if sent to the cardholder by the merchant without any truncation. See Simonoff v. Expedia, Inc., 643 F.3d 1202, 1207–10 (9th Cir. 2011). FACTA also contemplates that the merchant who accepts the credit card has direct control over the device that prints the receipt. Id. at 1209. Case 2:16-cv-04994-GW-PLA Document 36 Filed 10/17/16 Page 10 of 14 Page ID #:142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANT KYDIA, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1134963.2 CAROTHERS DiSANTE & FREUDENBERGER LLP As alleged in the Complaint itself, Kydia is located in Northbrook, Illinois, while Donovan lives in Huntsville, Alabama. Donovan placed his restaurant order and received it a short time later at his home in Alabama, allegedly with a non- truncated receipt. It defies credulity even to suggest that Kydia in Illinois somehow printed Donovan’s receipt in Alabama. In any event, as a matter of undisputed fact, Kydia never printed Donovan’s receipt for the order. If Donovan’s allegations are true, it was the restaurant that printed the offending receipt. SUF, No. 7. Because Kydia did not “print” the receipt, it cannot be liable to Donovan under FACTA’s truncation requirement as a matter of law. D. Kydia Never “Provided” the Receipt to Donovan at the Point of the Sale or Transaction. Donovan himself alleges that the receipt at issue was stapled to his food order. The restaurant in Alabama delivered his food to him, not Kydia in Illinois. SUF, No. 7. In addition, Donovan admits in his own Complaint that the receipt was provided to him at his personal address. Complaint, p. 3, ¶ 17, ln. 18. FACTA, however, proscribes printing and providing non-truncated receipts only “at the point of the sale or transaction.” Delivery to a personal residence is not “at the point of the sale or transaction” for an order. In Andrade v. Desert Champions LLC, 113 F.Supp. 3d 1020, 1020, 1024 (N.D. Cal. 2015), another California federal district court recently analyzed this situation under FACTA and explained why the truncation requirement does not apply when the credit card receipt is delivered to the cardholder’s home. The court noted that FACTA’s truncation requirement seeks to limit “the proliferation of paper receipts, bearing private information, inattentively transferred in public locations,” and accordingly applies to receipts provided at retail locations where they could be “dropped, mislaid, or discarded by the consumer in any number of public places where it easily can be retrieved and put to nefarious use by others.’” Andrade, 113 F.Supp. 3d at 1024 (citation omitted)(emphasis added). This was the Case 2:16-cv-04994-GW-PLA Document 36 Filed 10/17/16 Page 11 of 14 Page ID #:143 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANT KYDIA, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1134963.2 CAROTHERS DiSANTE & FREUDENBERGER LLP express purpose of the “point of the sale or transaction” limitation in the procedural truncation requirement of section 1681c(g)(1). Receipts provided to the cardholder at his own address following a telephone sale legally are not provided “at the point of the sale or transaction” (113 F.Supp. at 1025), and meet neither the language nor purposes of FACTA’s truncation requirement. The Complaint in this Action alleges only that the offending receipt was delivered to Donovan at his home, which, as a matter of law, is not “at the point of the sale or transaction” and therefore is not prohibited by FACTA’s truncation requirement. Because Kydia never “provided” the receipt, and, in any event, Donovan himself admits that it was provided to him at his own address, not at the point of the sale or transaction, Kydia cannot be liable to Donovan under FACTA’s truncation requirement as a matter of law. As demonstrated above, no genuine dispute exists as to Donovan’s sole claim against Kydia under FACTA’s truncation requirement, such that Kydia is entitled to summary judgment as a matter of law. IV. CONCLUSION For the foregoing reasons, Kydia respectfully requests that the Court grant summary judgment in favor of Kydia and against Donovan. Dated: October 17, 2016 CAROTHERS DISANTE & FREUDENBERGER LLP By: /s/ David G. Hagopian David G. Hagopian Attorneys for Defendant KYDIA, INC. Case 2:16-cv-04994-GW-PLA Document 36 Filed 10/17/16 Page 12 of 14 Page ID #:144 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT KYDIA, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT 1134963.2 CAROTHERS DiSANTE & FREUDENBERGER LLP DECLARATION OF LEON CHEN I, Leon Chen, declare as follows: 1. I am the Chief Executive Officer of Defendant Kydia, Inc. (“Kydia”) in this Action. I make this declaration of my own personal knowledge, and if called to testify, I could and would competently testify as set forth in this declaration. 2. I submit this declaration in support of Kydia’s motion for summary judgment in favor of Kydia and against Plaintiff Chris Donovan. 3. Kydia is a corporation lawfully formed under the laws of the State of Illinois and in good standing in Illinois. Kydia has its principal–and, in fact, its only–place of business at 2528 Brian Drive, Northbrook, Illinois 60062. 4. Mr. Donovan used Kydia’s BeyondMenu.com restaurant mobile phone ordering application, which enables users to order food from local restaurants on their mobile devices for home delivery by the restaurant. 5. On June 10, 2016, Mr. Donovan used Kydia’s application to order food from Golden Star Chinese Restaurant (“Restaurant”). (In this declaration, I shall refer to the order he placed on that date as the “Order.”) The Restaurant is located in Huntsville, Alabama. 6. Kydia’s relationship with the Restaurant was such that the Restaurant itself would process customer credit cards for its own account and bill customers directly. As such, Kydia was not the merchant and did not accept, approve, process, or bill Mr. Donovan’s credit card at all for the Order. Rather, the Restaurant accepted and directly billed Mr. Donovan’s credit card for the Order. 7. In addition, Kydia did not print any receipts at all for the Order or otherwise attach or staple any receipts to Mr. Donovan’s Order. Kydia could not possibly have done so since Kydia is located in Northbrook Illinois, and the Order was processed and delivered locally to Mr. Donovan a short time later in Huntsville, Alabama. Only the Restaurant could have printed and stapled the receipt to the Order. Case 2:16-cv-04994-GW-PLA Document 36 Filed 10/17/16 Page 13 of 14 Page ID #:145 Case 2:16-cv-04994-GW-PLA Document 36 Filed 10/17/16 Page 14 of 14 Page ID #:146 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING SUMMARY JUDGMENT 1141193.1 CAROTHERS DiSANTE & FREUDENBERGER LLP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CHRIS DONOVAN, individually and on behalf of all other similarly situated, Plaintiff, vs. KYDIA, INC., an Illinois Corporation; and DOES 1 to 10, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-4994-GW (PLAx) Assigned for All Purposes To: Judge: George H. Wu Ctrm: 10 [PROPOSED] ORDER GRANTING SUMMARY JUDGMENT Date: November 17, 2016 Time: 8:30 a.m. Ctrm: 10 Action Filed: July 7, 2016 The motion of Defendant Kydia, Inc. for summary judgment came on regularly for hearing before this Court on November 17, 2016 and David G. Hagopian appeared as attorney for Defendant Kydia, Inc. and _______________ appeared as attorney for Plaintiff Chris Donovan. After considering the moving, opposition, and reply papers, as well as the arguments of counsel and all other matters presented to the Court, IT HEREBY IS ORDERED THAT the motion is GRANTED. Dated: , 2016 George H. Wu Judge of the United States District Court for the Central District of California Case 2:16-cv-04994-GW-PLA Document 36-1 Filed 10/17/16 Page 1 of 1 Page ID #:147