Third District Court of Appeal State of Florida
Opinion filed January 11, 2023. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-1724 Lower Tribunal No. 18-537 ________________
Yazan Saleh, Appellant/Cross-Appellee,
vs.
Miami Gardens Square One, Inc., etc., et al., Appellees/Cross-Appellants.
An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge.
Bret Lusskin, P.A., and Bret L. Lusskin; Scott D. Owens, P.A., and Scott D. Owens (Hollywood); Bruce S. Rogow, P.A., and Bruce S. Rogow (Cedar Mountain, NC); The Law Office of Jibrael S. Hindi, PLLC., and Jibrael S. Hindi (Fort Lauderdale); Bruce S. Rogow, P.A., and Tara A. Campion (Boca Raton), for appellant/cross-appellee.
Akerman LLP, and Christopher S. Carver (Fort Lauderdale); Akerman LLP, and Kristen M. Fiore (Tallahassee), for appellees/cross-appellants.
Before EMAS, LINDSEY and GORDO, JJ.
GORDO, J. Yazan Saleh appeals a trial court order granting final judgment in favor
of Miami Gardens Square One, Inc. d/b/a Tootsie’s Cabaret (“Miami
Gardens”) and RCI Hospitality Holdings, Inc.’s (“RCI”). 1 We have
jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). Finding no error in the trial court’s
dismissal of Saleh’s federal statutory claim, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In late December 2016, Saleh visited Tootsie’s Cabaret, an adult
entertainment nightclub located in Miami Gardens. Prior to leaving, Saleh
gave his server two different personal credit cards to pay for the services
provided. Saleh’s server returned his credit cards to him along with two
printed receipts, each displaying the first six and last four digits of his credit
card account numbers. Saleh kept both receipts.
A month later, Saleh filed a lawsuit against Miami Gardens and RCI2
in federal court based on those receipts, arguing Miami Gardens and RCI
willfully violated the Fair and Accurate Credit Transactions Act, 15 U.S.C §
1681c(g)(1) (“federal FACTA”). A year later, Saleh filed an identical federal
1 Miami Gardens and RCI filed a cross-appeal of the same order but acknowledge this Court need only reach the issues of this cross-appeal in the event the Court finds Saleh has standing to bring his federal FACTA claim. As we find Saleh lacks standing to maintain his claim, this cross- appeal is considered moot. 2 Miami Gardens is a subsidiary of RCI.
2 FACTA based claim in state court. In 2020, the Eleventh Circuit resolved
the issue of standing in Muransky v. Godiva Chocolatier, Inc., 979 F. 3d 917,
920 (11th Cir. 2020), finding “a party does not have standing to sue when it
pleads only the bare violation of a statute.”
In March 2021, Miami Gardens and RCI moved to dismiss the instant
state action arguing Saleh lacked standing because he failed to assert an
injury in fact. Saleh filed an amended complaint reasserting standing and
alleging Miami Gardens and RCI willfully violated federal FACTA because
they were aware of federal FACTA’s requirements. 3 Miami Gardens and
RCI again moved to dismiss the claim asserting lack of standing, which
Saleh opposed. In August 2021, the trial court held a hearing on the motion
3 While the trial court did not rule on the willfulness issue, we note the United States Supreme Court has found that under the federal FACTA scheme “willfulness” encompasses both knowing conduct and reckless conduct. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57 (2007). To show willfulness, a plaintiff must allege a defendant had knowledge of federal FACTA and was knowingly violating it. See Crupar-Weinmann v. Paris Baguette Am., Inc., 2014 WL 2990110, at *4 (S.D.N.Y. June 30, 2014) (finding bare allegations “that [the] defendant knew about FACTA’s requirements, [did] not support a plausible inference that [the] defendant knew that it was violating FACTA”); Seo v. CC CJV Am. Holdings, Inc., 2011 WL 4946507, at *2 (C.D. Cal. Oct. 18, 2011) (“The fact that information about FACTA was available to CJV does nothing to support Defendant’s naked assertion that CJV was notified of FACTA’s provisions and knowingly ignored them.”); Torongo v. Roy, 176 F. Supp. 3d 1320, 1323–24 (S.D. Fla. 2016) (noting “there [we]re no factual allegations supporting Plaintiff’s conclusory allegation[s]” of willfulness and “[i]f a [FACTA] violation is merely negligent, a plaintiff may recover only actual identity theft damages.”).
3 to dismiss and ultimately granted the motion aligning itself with the federal
court’s interpretation in Muransky finding Saleh lacked standing because he
asserted no legal injury. The trial court thus entered an order granting the
motion to dismiss and entered judgment in favor of Miami Gardens and RCI.
This appeal followed.
LEGAL ANALYSIS
We affirm in all respects based on the standing analysis in Southam v.
Red Wing Shoe Co., Inc., 343 So. 3d 106, 113 (Fla. 4th DCA 2022), review
denied, SC22-1052, 2022 WL 16848677 (Fla. Nov. 10, 2022) (finding the
appellant lacked standing to pursue his federal FACTA claim as he did not
demonstrate an injury in fact “since appellant kept the credit card receipt and
there is no danger that the credit card number could result in any concrete
injury to appellant”); see also Spokeo, Inc. v. Robins, 578 U.S. 330, 341
(2016) (holding that “a bare procedural violation, divorced from any concrete
harm” does not confer standing); Muransky v. Godiva Chocolatier, Inc., 979
F. 3d 917, 936 (11th Cir. 2020) (“Although the receipt violated the law
because it contained too many digits, [Appellant] has alleged no concrete
harm or material risk of harm stemming from the violation. Because this
amounts to nothing more than a ‘bare procedural violation, divorced from
4 any concrete harm,’ [Appellant] has failed to allege that he has standing to
bring this lawsuit.” (quoting Spokeo, 578 U.S. at 341)).
On appeal, Saleh’s counsel concedes his client did not and cannot
establish he suffered an actual harm based on the receipts from Tootsie’s
because he retains possession of them. Instead, Saleh asks us to broaden
Florida’s standing requirements and exercise jurisdiction over the federal
statutory claim because Muransky only applies to Article III standing under
the United States Constitution. We find no basis to do so where Florida law
also imports an injury in fact requirement under our standing framework. See
State v. J.P., 907 So. 2d 1101, 1113 n.4 (Fla. 2004) (stating there are “three
requirements that constitute the ‘irreducible constitutional minimum’ for
standing. First, a plaintiff must demonstrate an ‘injury in fact,’ which is
‘concrete,’ ‘distinct and palpable,’ and ‘actual or imminent.’ Second, a
plaintiff must establish ‘a causal connection between the injury and the
conduct complained of.’ Third, a plaintiff must show ‘a “substantial
likelihood” that the requested relief will remedy the alleged injury in fact.’”)
(internal citations omitted).
Separately, where Saleh has sued under the federal statute, he is
required to allege a legally sufficient claim pursuant to the federal FACTA
statute itself. In 2008, Congress issued the Clarification Act which amended
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Third District Court of Appeal State of Florida
Opinion filed January 11, 2023. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-1724 Lower Tribunal No. 18-537 ________________
Yazan Saleh, Appellant/Cross-Appellee,
vs.
Miami Gardens Square One, Inc., etc., et al., Appellees/Cross-Appellants.
An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge.
Bret Lusskin, P.A., and Bret L. Lusskin; Scott D. Owens, P.A., and Scott D. Owens (Hollywood); Bruce S. Rogow, P.A., and Bruce S. Rogow (Cedar Mountain, NC); The Law Office of Jibrael S. Hindi, PLLC., and Jibrael S. Hindi (Fort Lauderdale); Bruce S. Rogow, P.A., and Tara A. Campion (Boca Raton), for appellant/cross-appellee.
Akerman LLP, and Christopher S. Carver (Fort Lauderdale); Akerman LLP, and Kristen M. Fiore (Tallahassee), for appellees/cross-appellants.
Before EMAS, LINDSEY and GORDO, JJ.
GORDO, J. Yazan Saleh appeals a trial court order granting final judgment in favor
of Miami Gardens Square One, Inc. d/b/a Tootsie’s Cabaret (“Miami
Gardens”) and RCI Hospitality Holdings, Inc.’s (“RCI”). 1 We have
jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). Finding no error in the trial court’s
dismissal of Saleh’s federal statutory claim, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In late December 2016, Saleh visited Tootsie’s Cabaret, an adult
entertainment nightclub located in Miami Gardens. Prior to leaving, Saleh
gave his server two different personal credit cards to pay for the services
provided. Saleh’s server returned his credit cards to him along with two
printed receipts, each displaying the first six and last four digits of his credit
card account numbers. Saleh kept both receipts.
A month later, Saleh filed a lawsuit against Miami Gardens and RCI2
in federal court based on those receipts, arguing Miami Gardens and RCI
willfully violated the Fair and Accurate Credit Transactions Act, 15 U.S.C §
1681c(g)(1) (“federal FACTA”). A year later, Saleh filed an identical federal
1 Miami Gardens and RCI filed a cross-appeal of the same order but acknowledge this Court need only reach the issues of this cross-appeal in the event the Court finds Saleh has standing to bring his federal FACTA claim. As we find Saleh lacks standing to maintain his claim, this cross- appeal is considered moot. 2 Miami Gardens is a subsidiary of RCI.
2 FACTA based claim in state court. In 2020, the Eleventh Circuit resolved
the issue of standing in Muransky v. Godiva Chocolatier, Inc., 979 F. 3d 917,
920 (11th Cir. 2020), finding “a party does not have standing to sue when it
pleads only the bare violation of a statute.”
In March 2021, Miami Gardens and RCI moved to dismiss the instant
state action arguing Saleh lacked standing because he failed to assert an
injury in fact. Saleh filed an amended complaint reasserting standing and
alleging Miami Gardens and RCI willfully violated federal FACTA because
they were aware of federal FACTA’s requirements. 3 Miami Gardens and
RCI again moved to dismiss the claim asserting lack of standing, which
Saleh opposed. In August 2021, the trial court held a hearing on the motion
3 While the trial court did not rule on the willfulness issue, we note the United States Supreme Court has found that under the federal FACTA scheme “willfulness” encompasses both knowing conduct and reckless conduct. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57 (2007). To show willfulness, a plaintiff must allege a defendant had knowledge of federal FACTA and was knowingly violating it. See Crupar-Weinmann v. Paris Baguette Am., Inc., 2014 WL 2990110, at *4 (S.D.N.Y. June 30, 2014) (finding bare allegations “that [the] defendant knew about FACTA’s requirements, [did] not support a plausible inference that [the] defendant knew that it was violating FACTA”); Seo v. CC CJV Am. Holdings, Inc., 2011 WL 4946507, at *2 (C.D. Cal. Oct. 18, 2011) (“The fact that information about FACTA was available to CJV does nothing to support Defendant’s naked assertion that CJV was notified of FACTA’s provisions and knowingly ignored them.”); Torongo v. Roy, 176 F. Supp. 3d 1320, 1323–24 (S.D. Fla. 2016) (noting “there [we]re no factual allegations supporting Plaintiff’s conclusory allegation[s]” of willfulness and “[i]f a [FACTA] violation is merely negligent, a plaintiff may recover only actual identity theft damages.”).
3 to dismiss and ultimately granted the motion aligning itself with the federal
court’s interpretation in Muransky finding Saleh lacked standing because he
asserted no legal injury. The trial court thus entered an order granting the
motion to dismiss and entered judgment in favor of Miami Gardens and RCI.
This appeal followed.
LEGAL ANALYSIS
We affirm in all respects based on the standing analysis in Southam v.
Red Wing Shoe Co., Inc., 343 So. 3d 106, 113 (Fla. 4th DCA 2022), review
denied, SC22-1052, 2022 WL 16848677 (Fla. Nov. 10, 2022) (finding the
appellant lacked standing to pursue his federal FACTA claim as he did not
demonstrate an injury in fact “since appellant kept the credit card receipt and
there is no danger that the credit card number could result in any concrete
injury to appellant”); see also Spokeo, Inc. v. Robins, 578 U.S. 330, 341
(2016) (holding that “a bare procedural violation, divorced from any concrete
harm” does not confer standing); Muransky v. Godiva Chocolatier, Inc., 979
F. 3d 917, 936 (11th Cir. 2020) (“Although the receipt violated the law
because it contained too many digits, [Appellant] has alleged no concrete
harm or material risk of harm stemming from the violation. Because this
amounts to nothing more than a ‘bare procedural violation, divorced from
4 any concrete harm,’ [Appellant] has failed to allege that he has standing to
bring this lawsuit.” (quoting Spokeo, 578 U.S. at 341)).
On appeal, Saleh’s counsel concedes his client did not and cannot
establish he suffered an actual harm based on the receipts from Tootsie’s
because he retains possession of them. Instead, Saleh asks us to broaden
Florida’s standing requirements and exercise jurisdiction over the federal
statutory claim because Muransky only applies to Article III standing under
the United States Constitution. We find no basis to do so where Florida law
also imports an injury in fact requirement under our standing framework. See
State v. J.P., 907 So. 2d 1101, 1113 n.4 (Fla. 2004) (stating there are “three
requirements that constitute the ‘irreducible constitutional minimum’ for
standing. First, a plaintiff must demonstrate an ‘injury in fact,’ which is
‘concrete,’ ‘distinct and palpable,’ and ‘actual or imminent.’ Second, a
plaintiff must establish ‘a causal connection between the injury and the
conduct complained of.’ Third, a plaintiff must show ‘a “substantial
likelihood” that the requested relief will remedy the alleged injury in fact.’”)
(internal citations omitted).
Separately, where Saleh has sued under the federal statute, he is
required to allege a legally sufficient claim pursuant to the federal FACTA
statute itself. In 2008, Congress issued the Clarification Act which amended
5 the federal FACTA statutory scheme to include actual harm. See Credit and
Debit Card Receipt Clarification Act of 2007, Pub. L. No. 110-241 § 2(b), 122
Stat. 1565, 1565 (2008) (“The purpose of this Act is to ensure that
consumers suffering from any actual harm to their credit or identity are
protected while simultaneously limiting abusive lawsuits that do not protect
consumers but only result in increased cost to business and potentially
increased prices to consumers.”) (emphasis added). As recognized by the
Eleventh Circuit in Muransky, the Clarification Act demonstrated Congress’s
“view that some technical FACTA violations caused consumers no harm.”
Muransky, 979 F. 3d at 921. Thus, mere violation of the statute absent harm
cannot create a viable claim because, “there is good reason to doubt that
Congress has deemed every violation of FACTA to pose a material risk of
identity theft. . . . [as] Congress expressly recognized in the Clarification Act
that not all violations of the truncation requirement pose a serious threat to
consumers.” Id. at 932–33 (citing Pub. L. No. 110-241 § 2(b), 122 Stat. at
1566). Accordingly, because Congress clarified the purpose of the federal
FACTA statutory scheme is to protect consumers from actual harm, a plaintiff
must allege an actual harm to pursue a claim under the statute. As Saleh
acknowledges he suffered no actual harm, we also find the trial court
6 properly dismissed Saleh’s complaint as legally insufficient for failure to
plead an actual injury under the federal FACTA statutory scheme.
Affirmed.