United States District Court, S.D. Texas, Houston Division
JOHN B. WOODS, Plaintiff,
LUBY'S, INC., Defendant.
MEMORANDUM OPINION AND ORDER
KENNETH M. HOYT, UNITED STATES DISTRICT JUDGE.
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.
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.).
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
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.).
now moves to dismiss the plaintiff's complaint for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1) ...