United States District Court, S.D. Texas, Houston Division
MARILYN R. PICKAREE, Plaintiff,
VISA USA, INC., Defendant.
MEMORANDUM AND OPINION
Rosenthal, Chief United States District Judge.
2019, Marilyn R. Pickaree sued Visa USA, Inc. for $20 million
in damages for violating the Fair and Accurate Credit
Transactions Act, 15 U.S.C. §§ 1681, et
seq. (Docket Entry No. 1 at 18). Visa moved to dismiss
and for a more definite statement, arguing that Pickaree
filed her complaint outside the statute of limitations and
lacks standing to bring her claim. (Docket Entry No. 7 at
2-4). Pickaree, a self-described professional pro se
litigant, replied by restating the arguments in her complaint
and asserting that her filing is timely. (Docket Entry No.
7-1 at 2; Docket Entry No. 12 at 12).
court agrees that this action is time-barred and grants the
motion to dismiss. An order dismissing the case with
prejudice is entered separately. The dismissal moots the
standing issue and Visa's motion for a more definite
claims that, on June 10, 2015, after making a purchase with
her Visa credit card, she received a receipt illegally
displaying her full credit card number and expiration date.
(Docket Entry No. 1 at ¶¶ 9, 14). In May 2017,
Pickaree sued the store, Royal Coin & Jewelry, in Harris
County, Texas district court. (Id. at ¶ 15).
She added Woodforest National Bank as a party in June 2018.
(Id. at ¶ 18). Pickaree alleges that she
settled with both the store and the bank. (Id. at
¶¶ 20- 21). She sued Visa for the first time in
June 2019 in federal court, arguing that Visa is also
responsible for the allegedly defective receipt.
(Id. at ¶ 22).
complaint does not specify what section of the Act Visa
violated. Her original state-court petition against the
store, which she attached to her federal complaint, cites 15
U.S.C. § 1681c(g)(1), which provides that:
[e]xcept as otherwise provided in this subsection, 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.
(Docket Entry No. 1-2 at 36 n.10). Pickaree did not sue Visa
until June 2019 even though the transaction occurred in June
2015. (Docket Entry No. 1).
The Legal Standard for Granting a Motion to Dismiss
12(b)(6) allows dismissal if a plaintiff fails “to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) must be read in
conjunction with Rule 8(a), which requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint
must contain “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Rule 8 “does
not require ‘detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
“The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550, U.S. at 556).
the allegations in a complaint, however true, could not raise
a claim of entitlement to relief, this basic deficiency
should be exposed at the point of minimum expenditure of time
and money by the parties and the court.” Cuvillier
v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007)
(alterations omitted) (quoting Twombly, 550 U.S. at
558). A court may dismiss an action under Rule 12(b)(6)
“where it is evident from the plaintiff's pleadings
that the action is [time-]barred and the pleadings fail to
raise some basis for tolling or the like.”
King-White v. Humble Indep. Sch. Dist., 803 F.3d
754, 758 (5th Cir. 2015) (quoting Jones v. Alcoa,
Inc., 339 F.3d 359, 366 (5th Cir. 2003).
reviewing a motion to dismiss under Rule 12(b)(6) may
consider “(1) the facts set forth in the complaint, (2)
documents attached to the complaint, and (3) matters of which
judicial notice may be taken under Federal Rule of Evidence
201.” Inclusive Cmtys Project, Inc. v. Lincoln
Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019).
complaint is time-barred because she sued Visa over two years
after discovering the Act violations in the receipt. The
Act's limitations ...