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Woods v. Luby's, Inc.

United States District Court, S.D. Texas, Houston Division

March 29, 2018

JOHN B. WOODS, Plaintiff,
v.
LUBY'S, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          KENNETH M. HOYT, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Pending before the Court is the defendant's, Luby's, Inc. (“Luby's”), motion to dismiss the plaintiff's, John B. Woods (the “plaintiff”), action for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). (Dkt. No. 9). The plaintiff has filed a response in opposition to Luby's motion to dismiss (Dkt. No. 15) and Luby's has filed a reply, along with various notices of supplemental authorities. (Dkt. Nos. 21, 27, 31, 32, 33 & 37). After having carefully considered the motion, response, replies and the applicable law, the Court determines that Luby's motion to dismiss brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure should be GRANTED.

         II. FACTUAL BACKGROUND

         On April 13, 2017, the plaintiff, on behalf of himself and all other persons similarly situated, commenced the instant action against Luby's alleging a violation of the Fair and Accurate Credit Transactions Act (“FACTA”), 15 U.S.C. § 1681c(g). Specifically, the plaintiff alleges that on April 12, 2016, and again, on May 25, 2016, after purchasing meals at Luby's with his VISA debit card, he received two computer-generated receipts at the point of sale, which displayed more than the last 5 digits of his VISA debit card number. (See Dkt. No. 1 at 4 - 5, ¶¶ 19 - 26; see also Dkt. No. 1, Exs. A & B.). The plaintiff maintains that, as a consequence, he “has been required to check his debit card bank statements and his credit report to confirm that he [has not been] the victim of identity theft-causing [him] unnecessary stress and wasting [his] time.” (Id. at ¶ 26.). He further alleges that Luby's made his private credit card information known to its staff and potentially others, violating his “right of privacy.” (Id. at ¶ 26.).

         With regard to his allegations supporting a purported class, the plaintiff asserts that the following common questions affect the individual class members:

a. Whether [Luby's] printed sales or transaction receipts truncated credit or debit card numbers as FACTA requires;
b. When [Luby's] put its credit and debit card machines into service;
c. Whether [Luby's] had a practice of providing customers sales or transaction receipts that failed to comply with FACTA's truncation requirement;
d. Whether [Luby's] violated FACTA;
e. Whether [Luby's] conduct was reckless; and
f. What amount of statutory damages the Court should order [Luby's] to pay.

(Id. at ¶ 30.).

         Luby's now moves to dismiss the plaintiff's complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) ...


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