Teggerdine v. Speedway, Llc

MOTION to dismiss for failure to state a claim and Memorandum of Law in Support

M.D. Fla.February 6, 2017

1 804633 v2 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION KARA TEGGERDINE, individually and on behalf of all others similarly situated, Plaintiff, vs. SPEEDWAY LLC, Defendant. Case No. 8:16-cv-03280-JDW-TGW DEFENDANT SPEEDWAY LLC’S MOTION TO DISMISS AND MEMORANDUM OF LAW IN SUPPORT Defendant Speedway LLC (“Speedway”), pursuant to Rule 8 and 12(b)(6), Federal Rules of Civil Procedure, hereby moves this Court for an order dismissing Plaintiff’s FDUTPA claim for failure to state a claim upon which relief can be granted. Here, Plaintiff seeks to recover under FDUTPA despite the fact that she has suffered no actual damages, an essential element of a FDUTPA claim. Moreover, Plaintiff’s claim for injunctive relief is improper in that (i) the complained-of conduct has already stopped and (ii) the injunction she seeks is an impermissible “obey-the-law” injunction. Finally, Plaintiff’s request for statutory damages has no statutory support. For these reasons, explained more fully below, Plaintiff’s FDUTPA claim should be dismissed. Introduction Plaintiff’s Class Action Complaint alleges that a Real Time Clearing program for processing credit and debit card payments implemented at Speedway stores on November 16, 2016 “did not function properly.” [D.E. 1, Compl. ¶¶ 1-2, 10-19, 23.] That is, according to Case 8:16-cv-03280-JDW-TGW Document 9 Filed 02/06/17 Page 1 of 8 PageID 40 2 804633 v2 Plaintiff, between the evening of November 16, 2016 and the afternoon of November 17, 2017, certain debit card holders who came to Speedway fueling stations to purchase gasoline experienced up to $125 “holds” on the bank accounts associated with those cards. [Id. ¶ 19.] The holds, which were supposed to last no more than two hours, in some cases remained in place for two to three days before being released by the customers’ various banks. [Id. ¶¶ 17 & 23.] This, Plaintiff alleges, caused her and others to suffer “financial hardship and other damages,” such as insufficient fund charges and late fees assessed by their financial institutions. [Id. ¶¶ 2, 24, 71.] Plaintiff admits the Real Time Clearing program was active for only one day and is no longer in place. [Id. ¶ 19.] Nonetheless, Plaintiff purports to bring a class action on behalf of “[a]ll persons residing in the United States who made a gasoline purchase with a debit/check card at a Speedway station from November 16, 2016 through and including November 17, 2016, and had a $125 authorization hold placed on their personal financial account[.]” [Id. ¶ 25.] Plaintiff asserts - on behalf of herself and the putative nationwide class - claims for negligence, breach of implied contract, unjust enrichment, and violation of the Florida Unfair and Deceptive Trade Practices Act. In connection with her FDUTPA claim, Plaintiff seeks to recover unspecified “actual damages[,]” “equitable relief[,]” “statutory damages[,]” and “reasonable attorneys’ fees and costs[.]” [Id. ¶ 73.] For the reasons set forth herein, Plaintiff is entitled to no such relief. Respectfully, her FDUTPA claim should be dismissed. Argument Rule 8(a)(2), Federal Rules of Civil Procedure, explains that for a pleading to state a claim for relief it must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Moreover, the claim must be sufficient to “give the Case 8:16-cv-03280-JDW-TGW Document 9 Filed 02/06/17 Page 2 of 8 PageID 41 3 804633 v2 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Similarly, while “the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). “To survive a motion to dismiss, plaintiffs must do more than merely state legal conclusions; they are required to allege some specific factual bases for those conclusions or face dismissal of their claims.” Jackson v. BellSouth Telecomms., 372 F. 3d 1250, 1262 (11th Cir. 2004). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. “Conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Jackson v. BellSouth Telecomms., 372 F. 3d 1250, 1262 (11th Cir. 2004). Moreover, in adjudicating a motion to dismiss, “courts are not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Here, Plaintiff’s FDUTPA claim fails for the simple reason (among others) that she has no suffered no injury remediable by the statute. I. Plaintiff Has Alleged No “Actual Damages” “[A] consumer claim for damages under FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” Rollins, Inc. v. Butland, 951 So.2d Case 8:16-cv-03280-JDW-TGW Document 9 Filed 02/06/17 Page 3 of 8 PageID 42 4 804633 v2 860, 869 (Fla. 2d DCA 2006). Actual damages, moreover, have been defined by the Florida courts as “the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties.” Id. (quoting Rollins, Inc. v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984)). Here, Plaintiff does not allege that she sustained “actual damages” so as to make her FDUTPA claim plausible. Plaintiff claims that she and other class members were “wrongfully deprived from use of their personal funds, which resulted in profound vulnerability and inability to use their money for personal needs and resulted in financial damages in the form of overdraft fees and loss of use of funds.” [Compl. ¶ 71.] As Plaintiff’s Complaint makes clear, Plaintiff’s money was subject to an authorization “hold” but the hold was subsequently released and Plaintiff re-gained access to her funds. [Compl. ¶¶ 17 & 23.] Thus, to the extent Plaintiff points to an injury, it relates to insufficient fund charges and late fees imposed by third-parties as a consequence of the hold and the resultant insufficiency of funds in her account. [Id. ¶¶ 2 & 24.] But it is well established that, “[f]or purposes of recovery under FDUTPA, ‘actual damages’ do not include consequential damages.” Rollins, Inc., 951 So.2d at 869; accord Dorestin v. Hollywood Imports, Inc., 45 So.3d 819, 824-25 (Fla. 4th DCA 2010) (FDUTPA does not allow for consequential damages or any other damages outside of actual damages); Orkin Exterminating Co., Inc. v. DelGuidice, 790 So.2d 1158, 1162 (Fla. 5th DCA 2001) (actual damages do not include actual consequential damages); Macias v. HBC of Florida, Inc., 694 So. 2d 88 (Fla. 3d DCA 1997) (holding likewise). Case 8:16-cv-03280-JDW-TGW Document 9 Filed 02/06/17 Page 4 of 8 PageID 43 5 804633 v2 Simply stated, in the absence of “actual damages,” Plaintiff has failed to state a claim under FDUTPA. Dorestin, 45 So.3d at 824 (“Proof of actual damages is necessary to sustain a FDUTPA claim.”). Respectfully, her claim should be dismissed. II. Plaintiff is Not Entitled to Injunctive Relief Plaintiff’s Complaint also demonstrates the impropriety of injunctive relief under FDUTPA (or, at a minimum, puts forward no plausible basis for an award of such relief). As she acknowledges, the holds at issue “were the result of a new credit card program implemented by Speedway on Wednesday, November 16 and terminated by the afternoon of Thursday, November 17, 2016 because of the problems troubles [sic] experienced by customers.” [Compl. ¶ 19 (emphasis supplied); see also id. ¶ 24.] There is no allegation (nor could there be) that Speedway has re-implemented the Real Time Clearing program or has any plans to do so. In the absence of allegations supporting a well-grounded probability that the complained- of conduct will continue in the future, Plaintiff’s request for injunctive relief was moot even at the time she initiated this action. BankWest, Inc. v. Baker, 446 F.3d 1358, 1364 (11th Cir. 2006). Not only that, but the requested injunctive relief-i.e., “that Speedway [be] permanently enjoined from its improper conduct and practices as alleged”-is nothing more than a proposed mandate that Speedway obey the law. The Eleventh Circuit has made clear that such injunctions are unenforceable and deprive the purportedly enjoined party of due process. Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health and Rehab. Servs., 225 F.3d 1208, 1222-23 (11th Cir. 2000). For those reasons, as well, Plaintiff’s FDUTPA claim should be dismissed. Case 8:16-cv-03280-JDW-TGW Document 9 Filed 02/06/17 Page 5 of 8 PageID 44 6 804633 v2 III. Plaintiff is Not Entitled to Statutory Damages, Costs, or Fees Plaintiff’s remaining requests for relief under FDUTPA are likewise infirm. Statutory damages are unavailable to private litigants, but can only be recovered by the “enforcing authority[.]” Fla. Stat. § 501.2075; see also Zendejas v. Redman, No. 15-81229-CIV-MARRA, 2016 WL 1242349, at *8 (S.D. Fla. Mar. 30, 2016) (“Since this action is brought by a private individual and not the ‘enforcing authority,’ a civil penalty cannot be recovered in this case.”). And, having not otherwise pled a viable claim under the statute, Plaintiff is not entitled to costs or fees. Conclusion In short, Plaintiff’s allegations are insufficient to state a plausible claim for relief pursuant to FDUTPA. Plaintiff does not, and cannot, allege actual damages so as to entitle her to recovery under the statute. Similarly, Plaintiff’s own allegations demonstrate that the conduct she seeks to enjoin has already ceased, making her request for an injunction moot, and, even if not moot, the requested relief is an impermissible obey-the-law injunction. Finally, as a matter of law, Plaintiff is not entitled to recover the other damages that she seeks under FDUTPA. For all the foregoing reasons, Speedway respectfully requests that Count IV of Plaintiff’s Complaint be dismissed. [Signature of Counsel Appears on the Following Page] Case 8:16-cv-03280-JDW-TGW Document 9 Filed 02/06/17 Page 6 of 8 PageID 45 7 804633 v2 Respectfully submitted, By: s/ David S. Johnson_________________ David S. Johnson (FBN 096423) SHOOK, HARDY & BACON L.L.P. 100 North Tampa Street, Suite 2900 Tampa, FL 33602-5810 Telephone: (813) 202-7100 Facsimile: (813) 221-8837 ddjohnson@shb.com Daniel B. Rogers (FBN 195634) Jennifer A. McLoone (FBN 29234) SHOOK, HARDY & BACON L.L.P. Miami Center, Suite 3200 201 South Biscayne Boulevard Miami, Florida 33131 4332 Telephone: (305) 358-5171 Facsimile: (305) 358-7470 drogers@shb.com jmcloone@shb.com Attorneys for Defendant Of counsel Edward A. Marshall (Ga Bar No. 471533) Theresa Y. Kananen (Ga Bar No. 478998) ARNALL GOLDEN GREGORY LLP 171 17th St. NW, Suite 2100 Atlanta, GA 30363-1031 Telephone: 404.873.8500 Facsimile: 404.873.8501 edward.marshall@agg.com theresa.kananen@agg.com Case 8:16-cv-03280-JDW-TGW Document 9 Filed 02/06/17 Page 7 of 8 PageID 46 8 804633 v2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 6, 2017, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will send notification to all counsel of record. s/ David S. Johnson Attorney Case 8:16-cv-03280-JDW-TGW Document 9 Filed 02/06/17 Page 8 of 8 PageID 47